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SCHOOL OF u-.H 
^vv COLUMBIA, S. a 



THE LAW 



OF MAGISTRATES AND CONSTABLES, 



IN THE STATE OF SOUTH-CAEOLINA. 



COMPRISING 

A DIGEST OF THE DUTIES AND POWERS OF THESE OFFICERS, AS ESTABLISHED BY THE 

STATUTE LAW, AND ADJUDGED CASES IN THE COURTS OF THIS STATE. 

WITH 
AN ADDITION OF THE COMMON LAW OF CRIME. 

TO WHICH IS ADDED, 

A NUMBER OF WARRANTS AND OTHER PRECEDENTS, 

UNDER THEIR SEVERAL HEADS. 



prepared 
By B. C. PRESSLEY, Esq., 

OF THE CHARLESTON BAR. * 

BY THE APPOINTMENT OF THE GOVERNOR OF THE STATE, HIS EXCELLENCY DAVID JOHNSON. 



a-s: 



CHARLESTON, S. C. 
PRINTED BY WALKER & BURKE, 

NO. 101 EAST-BAY. 

1848. 

UNIVERSITY OF SOUTH CARni W 
SCHOOL OF LAW 
COLUMBIA. S. C. 



NOTE. 

According to the rule in James' Digest, the penalties under the several Acta 
may be reduced to dollars and cents, at the following rate, viz: — One pound 
currency at GO cents; one pound proclamation money, at 85 cents; and one 
pound sterling at $4, 28. 6. 






/t.yhk. 



In the House of Representatives, Dec. 17, 1846. 

The Committee on District Offices and Officers, to whom was 
referred a Resolution to authorize the Governor to cause a compilation 
of the laws and decisions of the Court of Appeals, relative to the duties 
and powers of Magistrates and Constables, have had the same under 
consideration, and beg leave to Report: That they cannot, in their 
opinion, too strongly impress upon the House, the necessity of such a 
work, as the said resolution contemplates. That the Magistrates and 
Constables of the State are, in a large majority of cases, ignorant of the 
laws which the Legislature makes it their duty to enforce, does not 
admit of a doubt. These laws are now dispersed over many thousands 
of pages of law books, which are to them, in a great measure, wholly 
inaccessible, and being thus deficient in the knowledge of the laws 
which it is their duty to enforce, and having no means within their 
power to obtain that knowledge, they must, of necessity, be wanting 
in that confidence in their own ability, without which it is in vain to 
expect an efficient discharge of their duties. This being so, instead 
of administering the law as it is, their own judgement and impulses, 
are, of necessity, substituted for the law, and wrongs are thus being 
continually infficted upon the rights of the people, which has rendered 
the office itself, not only odious, but a positive tyranny, which calls 
loudly upon this Legislature for a remedy. 

Numerous prosecutions are continually occurring, upon frivolous 
and insufficient grounds, crowding the sessions dockets, all over the 
State — absorbing the time of the Courts — fomenting discords and 
strife among the people — taxing the time and means of defendants and 
prosecutors to a grievous extent, and drawing annually, large sums of 
money from the public Treasury to pay the costs of prosecutions. 

Your Committee, from a full examination of the subject,, are per- 
suaded that the evil referred to is of much greater magnitude than 



^M': 



seems to be generally supposed, and they cannot but deem it the impe- 
rious duty of tlie Legislature, to provide a remedy for these evils, and 
to guard the State from the reproach of permitting a continuation of 
ibis extensive and continually increasing mal-administration of justice 
by these inferior tribunals, whose acts affect most unjustly ihe rights of 
large masses of the people. In the judgement of your Committee, it is 
due to the character of the State, that something should be done to 
abate these evils, and to provide for a more just and a more enlight- 
ened administration of the law. Your Committee submits that the 
remedy is to be found in a complete revision and re-publication of the 
law in relation to these offices, and by placing it in a condensed form 
in the hands of every Magistrate and Constable appointed by your 
authority, as contemplated by the resolution referred to. The law 
thus simplified and condensed, with all necessary forms under each 
appropriate head, would bring it at once within the grasp andcompre- 
hension of the most common understanding, and with such a manuel in 
their hands, it would be hardly possible for them to err. 

Such a work, your Committee deem entirely practicable and expe- 
dient, and which, when completed, would render the duties of the 
offices of Magistrate and Constable, plain and intelligible. It would, 
in the opinion of your Committee, in a very short time, effect a most 
salutary change in the administration of the duties of these offices, 
and ihey feel confident would also soon redeem the office of Magistrate 
from the degradation to which it is now reduced, and they are equally 
confident would, in addition to the above enumerated advantages, 
relieve the Treasury from the burthen of a very heavy annual charge. 
Such a work, in the opinion of your Committee, would be also of much 
value, not only to the citizens of the State, generally, but likewise to 
the professional lawyer. 

Resolved, That His Excellency, the Governor, be authorized and 
requested to employ some fit and competent person to compile, under 
his direction, all the laws now offeree, in this State, in regard to the 
powers and duties of Magistrates and Constables, with a digest of the 
decisions of the Court of Appeals in relation thereto. And that he 
be further requested to communicate, at the next session of the Legis- 



lature, the progress of this work, and the compensation he may deem 
just and equitable should be paid to the person thus employed. 
Resolved, That the House do agree to the Report. 
Ordered, That it be sent to the Senate for concurrence. 
By order, 

T. W. GLOVER, a H. R. 

I's THE Senate, December 18, 184^. 
Resolved, That the Senate do concur in the Report. 
Ordered, That it be returned to the House of Representatives. 
By order, 

WM. E. MARTIN, C.S. 



INTRODUCTION 



There seems to be some diversity of opinion as to when Justices 
of Peace were first appointed. Polidore Virgil says that they had their 
beginning in the reign of WiUiam the Conqueror: Sir Edward Coke 
was of opinion that it was not until the sixth year of Edward 1st : 
Mr. Prynne affirms, that in the reign of Henry 3d, after the agreement 
between that king and his barons, Guardians ad Pacem Conservandam 
were constituted: and Sir Henry Spelman differs from all, being of 
opinion, that there were no Justices until the beginning of the reign 
of Edward 3d. Tom. 322. To this latter opinion, Lambard, Dalton, 
Nelson, Bacon and Burns, incline. Yet before the time of Edward 
3d, and long before the conquest, at common law there were certain 
Conservators of the Peace, which were of two sorts ; first, those who, 
in respect of their offices, had power to keep the peace, but were not 
called by the name of Conservators of the Peace, but by the name of 
such offices; second, those who were constituted for this purpose only, 
and were called Conservators or Wardens of the Peace. Of the 
first sort were, the Lord Chancellor, etc., the Justices of the King's 
Bench, the Master of the Rolls, Justices of Gaol-Delivery, the 
Sheriff, Coroner, also every high and petty Constable, and to these 
latter offices the duty of keeping the peace is still incident. Lam. book 
1st, c. 3. The second class, or Conservators of the Peace, simply so 
called, were either ordinary or extraordinary. The ordinary were 
either by tenure, to wit, such as held their lands by this service; or 
by prescription, viz., such as claimed such power by immemorial 
usage in themselves and their ancestors, or those whose estate they 
had; or, by election, viz., such as were chosen by the freeholders of 
a county in pursuance of the king's writ for this purpose; but the 
power of those Conservators of the Peace seems to have been no 
greater than that of the Constables of this day. Lam. book 1, cap. 3. 
The extraordinary, as he was endowed with high power, so he was 
appointed in times of great trouble only; and he had charge to defend 
2 



INTRODUCTION. 

the coast and country from foreign and inward enemies, and might 
command the sheriff and all the shire to assist him; as appears by a 
patent remaining of record in the tower, made in An. 49, U. 3d, in the 
name of that king, by Simon, Earl of Leicester, whose prisoner he 
then was. Lam. hook 1, c. 3. 

Such were the Conservators of the Peace, until the time of Edward 
3d, in whose reign Justices of the Peace were first appointed, and 
their power greatly enlarged. Of the occasion in which the first 
change was made, Lambard gives the following account, viz. : "After 
such time as Queen Isabel, contending with her husband, King Edward 
the second, was returned over the seas into England, accompanied 
with her son prince Edward, afterwards Edward 3d, and with Sir 
Roger Mortimer, and such others of the English nobilitie, as had for 
the indignation of the King fled over the seas unto her: she soon after 
got into her hands the person of the old king, partly by the assistance 
of the Henalders that she brought with her, and partly by the aid of 
such other of her friends as she tound ready here, and she immediately 
compelled him by force to surrender, his crown to the young prince. 
And then forasmuch as it was, not without cause, feared that some 
attempt would be made to rescue the imprisoned king; order was 
taken that he should be conveyed securely and by night watches from 
house to house and from castle to castle, to the end that his favourers 
should be ignorant what was become of him. Yea and then withal 
it was ordained by Parliament in the life-time of the deposed king and 
in the very first entry of his son's reign, (1 £. 13, c. 15,) that in every 
shire of the realm, good men and lawful, which were no maintainers 
of evil nor barretors in the country, should be assigned to keep the 
peace; which was as much as to say, that in every shire, the king 
himself should place special eyes and watches over the common 
people, that should be both willing and wise to foresee, and be 
enabled with meet authority to repress all intentions of uproar and 
force, even in the first seed thereof; so that for this cause, the election 
of the simple Conservators of the Peace was first taken from the 
people and transferred to the assignment of the king." Lam. hook 1, 
c. 4. 

Whether a forced construction was put upon the above recited 
statute, or whether the commissions, issued by the king, according to 
its authority, extended the authority of the Wardens of the Peace, doth 
not appear, but Lambard records that soon after, viz: In the third year 
of Edward 3., an indictment for murder was found before one 
Warden of the Peace. And the Statute 4, Edward 3., c. 2, recog- 



INTRODUCTION. xi 

nizes the authority of the said Wardens to indict, and takes order 
that persons indicted before them should not be bailed by the Sheriff 
or other Ministers, unless bailable by law. Ihid. Nor was their 
authority in this respect, long left in doubt, but rather greatly exten- 
ded, by the Statutes, 18 Edw, 3, c. 2, and 34: Edw 3, c. 1. By the 
former of which, it is enacted, that two or three of the best reputation 
in the counties should be assigned keepers of the peace by the king's 
commission, and at what time need shall be, the same with other wise 
and learned in the law, shall be assigned by the king's commission to 
hear and determine felonies and trespasses done in the said counties, • 
and to inflict punishment reasonably, according to the law and reason 
and the manner of the deed. 

By the latter Statute, it is enacted, that in every county in England, 
shall be assigned for the keeping of the peace, one lord, and with him 
three or four of the most worthy in the county, with some learned in* 
the law, and they shall have power to restrain, offenders, rioters, and 
all other barretors, and to pursue, arrest, take and chastise them, 
according to their trespass or offence, and to cause them to be impri- 
soned and didy punished according to the law and customs of the 
realm, and according to that ichich to them shall seem best to do by 
their discretion and good advisement, and also to inform them and to 
inquire of all those that have been pillars and robbers beyond the sea; 
and be now come again and go wandering, and will not labor as they 
were wont in times past, and to take and arrest all those that they may 
find by indictment or by suspicion, and put them in prison, and to take 
of all them that be not of good fame where they shall be found, suffi- 
cient surety and mainprize of their good behavior towards the king 
and his people, and the other duly to punish, to the intent that the 
people be not by such rioters or rebels troubled or endamaged, nor the 
peace blemished, nor merchants nor others passing by the highway of 
the realms, disturbed or put in the peril, which may happen of such 
offenders, and also to hear at the king^s suit all manner of felonies 
and trespasses done in the same county, according to the laws and 
custom aforesaid. 

The king's commissions, issued by authority of the above recited 
Statutes, created two orders of Justices. The first having authority 
to keep the peace, and to enforce and punish offences against the 
Statutes, made for the quiet and good government of the realm ; also, 
to act with the others in trying and punishing the higher offences men- 
tioned in the Statutes, and were called simply justices of the Peace. 
^ Haw. P, C.,50. 



INTRODUCTION. 

The second was of those described in the said Statutes, " as persons 
learned in the law," and had the same authority and duties as the first, 
with the additional proviso, that the presence of one of this number 
was always necessary to the trial and punishment of all offences other 
than mere breaches of the peace. They were called Justices of the 
Quorum, from that word being first m the clause, of the commission, 
which assigned to them special duties. Ibid, and Lam. 48. 

By the same commission, the Justices Court of Sessions was first 
instituted, for it commanded the said justices to make inquiries touching 
the said premises, and to hear and determine the same at certain days 
and places ns might bt appointed by them, or any two or more of 
them, to which days and places the Sheriff was commanded to return 
before them so many lawful men of his bailewick, by whom the truth 
of the premises might be made known and inquired. 2 Haw. 51. 
Afterwards, by Statute 2 Hen. 5, c. 4, they were required to hold 
their sessions four times in ihe year, at certain periods fixed by said 
Statutes, and hence their sittings were called quarter sessions. Lam. 
hook 4^ c. 19. 

The form of the commission was frequently changed in the reign of 
Edward 3, and of almost every succeeding Prince, till the 30th Eliz., 
when by the number of Statutes, particularly given in charge therein 
to the justices, many of which had been repealed, and much error and 
corruption having crept into it, partly by the error of clerks, and partly 
by the untoward huddling of things together, it was become so blem- 
ished and defective, that it required much to be adjusted. 

These imperfections being known to Sir Christopher Wrey, then 
Lord Chief Justice of the King's Bench, he had a conference with 
the other judges and barons, and the commission was carefully refined 
in Michaelmas term, 1590, and being there presented to the Lord 
Chancellor, it obtained his approbation, and he comjnanded it to be 
used, and is as follows : Lam. c. 9. 

To A. B. C. D , SfC, greeting. 

" Know 5^6 that we have assigned you, jointly and severally, and 
every one of you our justices, lo keep our peace in our county of <S. 
And to keep and cause to be kept all ordinances and statutes for the 
good of the peace, and for preservation of the same, and for the quiet 
rule aud government of our people made, in all and singular their arti- 
cles in our said county (as well within liberties as without) according 
to the force, form, and effect of the same ; and to chastise and punish 
all persons that offend against the form of those ordinances or statutes, 
or any one of them, in the aforesaid county, as it ought to be done 
according to the form of those ordinances and statutes ; and to cause 



INTRODUCTION. 

to come before you, or any of you, all those who to any one or^more 
of our people concerning their bodies or the firing of their houses, 
have used threats, to find sufficient security for the peace, or their 
good behaviour, towards us and our people ; and if they shall refuse 
to find such security, then them in our prisons, until they shall find 
such securitv, to cause to be safely kept. 

" We have also assigned you, and every two or more of you (of 
whom any one of you the aforesaid A. B. C. D., &c., we will shall 
be one) our justices to inquire the truth more fully, by the oath of good 
and lawful men of the aforesaid county, by whom the truth of the 
matter shall be the belter known, of all and all manner of felonies, 
poisonings, enchantments, sorceries, arts, magic, trespasses, forestall- 
ings, regratings, ingrossings, and extortions whatsoever ; and of all 
and singular other crimes and offences, of which the justices of our 
peace may or ought lawfully to inquire, by whomsoever and after what 
manner soever, in the said county done or perpetrated, or which shall 
happen to be there done or attempted ; and also of all those who in the 
aforesaid county in companies against our peace, in disturbance of our 
people, with armed force have gone or rode, or hereafter shall presume 
to go or ride; and also of all those who have there lain in wait, or 
hereafter shall presume to lie in wait, to maim or cut or kill our people ; 
and also of all victuallers, and all and singular other persons, who in 
the abuse of weights or measures, or in selling victuals, against the 
form of the ordinances and statutes, or any one of them therefore 
made, for the common benefit of England, and our people thereof, 
have offended or attempted, or hereafter shall presume in the said 
county to offend or attempt ; and also of all sheriffs, bailiffs, stewards, 
constables, keepers of gaols, or other officers; who in the execution 
of their offices about the premises, or any of them, have unduly behaved 
themselves, or hereafter shall presume to behave themselves unduly, 
or have been, or shall happen hereafter to be careless, remiss, or neg- 
ligent in our aforesaid county; and of all and singular articles and 
circumstances, and all other things whatsoever, that concern the 
premises, or any of them, by whomsoever, and after what manner 
soever, in our aforesaid county done or perpetrated, or which hereafter 
shall there happen to be done or attempted in what manner soever; 
and to inspect all indictments whatsoever so before you or any of you 
taken or to be taken, or before others late our justices of the peace in 
the aforesaid county made or taken, and not yet determined ; and to 
make and continue processes thereupon, against all and singular the 
persons so indicted, or who before you hereafter shall happen to be 
indicted; until they can be taken, surrender themselves, or be out- 
lawed : and to hear and determine all and singular the felonies, 
poisonings, inchantments, sorceries, arts, magic, trespasses, forestall- 
ings, regratings, ingrossings. extortions, unlawful assemblies, indict- 
ments aforesaid, and all and singular other the premises, according 
to the laws and statutes of England, as in the like case it has been 
accustomed, or ought to be done ; and the same offenders, and every 
of them for their offences, by fines, ransoms, amerciaments, forfei- 
tures, and other means as according to the law and custom of England, 



LNTRODUCTION. 

or form of the ordinances and statutes aforesaid, it lias been accus- 
ton)ed* or ought to be done, to chastise and punish. 

" Provided always, that if a case of difficulty, upon the determi- 
nation of any the premises, before you, or any two or more of you, 
shall happen to arise ; then let judgment in no wise be given thereon, 
before you, or any two or more of you, unless in the presence of one 
of our justices of the one or other bench, or of one of our justices 
appointed to held the assizes in the aforesaid county. 

'* And^ therefore we command you, and every of you, that to keeping 
the peace, ordinances, statutes, and all and singular other the premises, 
you diligently apply yourselves ; and that at certain days and places, 
which you or any such two or more of you as is aforesaid shall appoint 
for these purposes, into the premises ye make inquiries; and all and 
singular the premises hear and determine, and perform and fulfil them 
in the aforesaid form, doing therein what to justice appertains, accord- 
ing to the law and custom o^ England ; saving to us the amerciaments 
and other things to us therefrom belonging. 

"And we command, by the tenor of these presents, our sheriff of 
W., that at certain days and places, which you or any such two or 
more of you as is aforesaid, shall make known to him, he cause to 
come before you, or such two or more of you as aforesaid, so many 
and such good and lawful men of his bailiwick (as well within liberties 
as without) by whom the Iruth of the matter in the premises shall be 
better known and inquired into. 

" Lastly, we have assigned you the aforesaid A. B., keeper of the 
rolls of our peace in our said county. And therefore you shall cause 
to be brought before you and your said fellows, at the days and places 
aforesaid, the writs, precepts, processes, and indictments aforesaid, 
that they may be inspected, and by a due course determined as is 
aforesaid. 

" In witness whereof we have caused these our letters to be made 
patent. Witness ourself at Westminster, &c." , 

In addition to the powers of justices set forth in this commission, 
other authority was conferred by numerous statutes. Thus, by 4 H. 
7, c. 12, they were required to enforce the laws against counterfeits, 
murders, robberies, unlawful retainers, idleness, unlawful plays, 
extortions, misdemeaning of Sheriffs, escheators, and many other enor- 
mities ; and by the Statutes 5 Eliz., c. 1 ; 23 Eliz., c. 1 ; 1 and 2 
P. <Sf M., c. 1.3, they were required to take indictments of certain 
offences declared treason by the first two mentioned Statutes, and to 
certify the same into the King's Bench or gaol delivery, and by the 
last two Statutes, a single justice was authorized to arrest and commit 
or bail persons charged with manslaughter and felony. 3 Bac, 291; 
2 P. L., 482. 

Thus we find that both by force of the above recited commission, 
and the said Statute of 4 H. 7, c. 12, the justices in their sessions 



INTRODUCTION. 

were empowered to try murders and manslaughter as well as other 
felonies ; yet Bacon affirms, 3 Bac. p. 292, that they seldom exer- 
cised jurisdiction herein or in any offences from which clergy was 
taken away, and he gives two reasons for the same. 

1st. By reason of the monition in their commission, that in cases 
of difficulty they should not give judgment, but in the presence of one 
of the justices of one or other bench. Ann. 

2nd. By reason of the Statute 1 and 2, P. and M.,c. 13, which 
directs the justices of the peace in cases ot manslaughter and other 
felonies, to bind over the prosecutor and party to the next general 
gaol delivery. Lambard also in his 4th book, though he gives direc- 
tions for forming and charging the Grand Jury, and also for the other 
proceedings in the trial of felons ; yet adds, that in the trial of felons 
the justices of the sessions are not now-a-days much occupied ; the 
rather, because they defer it till the coming of the justices of assize, by 
reason of the Statute 1 and 2 P. and M. c. 13. 

Such were the general powers of justices of the peace and quorum 
up to the time of our provincial legislation, besides which the execu- 
tion of numerous statutes was committed to their charge, sometimes 
to one justice, sometimes to two, sometimes to their sessions, some- 
times out of their sessions ; but as many of said statutes are not now 
offeree, and others will necessarily receive special notice under their 
appropriate heads, further notice here would become both tedious and 
unprofitable, and we therefore proceed at once to notice a few impor- 
tant particulars, in which these general powers have been enlarged or 
diminished by the legislation of South-Carolina. 

First. By an Act passed in 3d James 2., A. D. 1686, 2 P. L. 27, 
and re-enacted from time to time until made perpetual by Act of Dec. 
12, 1712, 2 P. L. 598, the trial of actions for debt or other demand 
to the extent of forty shillings, which before belonged to the sheriffs' 
court or court of pleas, was committed to justices of the peace. And 
by Act of 1799 and 1805, their jurisdiction in such causes was extended, 
first, to the amount of twenty, and afterwards to thirty dollars; but 
the Constitutional Court, in the case of White ads Kendrick, 1 Bre. 
Dig., 476, having decided the latter act to be unconstitutional, the 
amount to which their jurisdiction should extend was settled, 6 P. L. 
239, at twenty dollars. 

Secondly. The Act of 1731, 3 P. L. 282, transfers all the powers 
of justices of the peace in their sessions to a court of general sessions 
of the peace, to be held by the chief justice and two assistant judges; 
and since the power of said justices of the peace, to try and punish 



XVI ' . INTRODUCTION. 

criminals, was chiefly to be exercised in their quarter sessions, it 
follows, that from the time of this Act their authority to try and punish 
was confined to a few special offences committed to them bj Statute; 
and in 1734, 7 P. L. 187, they were excused wholly from attending 
the sessions, except they had recognizances to return. 

Third. By Act of 1740, and its various amendments, the trial and 
punishment of slaves and free persons of colour for alj manner of 
offences whatsoever, was eommitted to justices of the peace, in som5 
instances to one, and in others to two justices; but now by Act 1839, 
one may try a slave or free person of color for any offence wWatsoever; 
and by the same Act of 1839, all distinction between justices of the 
peace and quorum is abolished, and all are called by the title of 
Magistrate. 

Besides these changes in the general powers, might be noticed 
many special duties from time to time added to their office, such as 
the execution of the Habeas Corpus, the trial of vagrants, proceedings 
in forcible entry, &c.; but these matters may be specially seen under 
their appropriate heads. 



1 



LAW OF MAGISTRATES. 



A B D U C T 10 N . 

The taking away or causing to be taken away a maiden under the y^i^^i 
age of sixteen years, from the custody and against the will ofher father, *^""^"'"'^^* 
mother, or other persons having charge of her. 4th and 5th P. & 
M., c. 8. 

The person charged with the offence must be above the a^e of who can be 

^ charged. 

fourteen years. 

The punishment is fine and imprisonment; and if, in addition to p^^JgJJ^Jg^{^ 
taking away, the maiden be deflowered or married, the imprisonment 
is extended to five years. 



ABOLITION. 

Any white person who shall directly or indirectly circulate, or bring vvhite 
within the State any written or printed paper, with intent to disturb ^frouiati„<r 
the peace or security of the State in relation to the slaves thereof, p^p®"^®* 
upon conviction, shall be fined not exceeding one thousand dollars, 
and imprisoned not exceeding one year. Act A., 1820, L. S., 7,460. 
A free person of colour, for the first oflfence, shall suffer the like fine a person of 
and imprisonment ; for the second, shall be whipped not exceeding *^° °'^' 
fifty lashes, and be banished from the State ; and for returning from 
banishment, unless by unavoidable accident, shall suffer death without 
clergy. Act A., 1844, L. S., 292. 



AC CES S ARIES. 

An accessary is he who is not the chief actor in the offence, nor Definition. * 
present at its performance, but is in some way concerned therein 
either before or after the fact committed. B. C, 4th p., 35. 



18 LAW OF MAGISTRATES. 

Isi. Of what offences. 
None In All persoiis concerned in treason are principals; so also in assault 

and battery, and all other offences less than felony. 
2d. Before the fact. 
An accessary before the fact, is he, who being absent at the time 
of the crime committed, doth yet procure, counsel, or command 
another to commit it. 
None in Offences, which, in the construction of law, are sudden and unpre- 

offences. meditated, cannot have any accessaries before, but may after. 
Wife may be A wife may be an accessary before the fact, by procuring her 
Master may husband to commit a felony; 2 Haw., 320. A master or other white 
person may be accessary to a slave, and the confessions of the slave 
admitting his guilt as principal, are evidence against a white person 
on trial as accessary. So also the records of conviction of the slave. 
2 Bail., 29. 

2d. After the fact. 

An accessary after the fact, is one who, knowing a felony to have 

been committed, yet shelters, conceals, or assists in the escape of the 

complete, felon. The felony must be complete at the time of the assistance 

Wife cannot given, else it makes not the assistant an accessary. The wife cannot 

parenTcan. become an accessary by concealing her husband, for she is presumed 

to act under his coercion; but the husband becomes accessary by 

concealing the wife, the parent by concealing the child, &c. B.C., 

4,39. 

Necessary proceedings. 
The affidavit should set forth particularly the full name of the 
principals, if known, the offence committed, with time, place, and 
circumstance ; the name of the accessary, and what part he acted 
in the matter, and should be attached to the warrant. An accessary 
may be admitted to bail in no case where the punishment of the 
offence is death without benefit of clergy, but may be bailed in all 
other cases. Act 1839, 1. He may be arrested and committed, or 
bailed (but not tried) before the principal. 



ACCOMPLICE. 
1st. Definition. 

An accomplice is one of two or more, equally concerned in a 
felony, and the term is generally applied to those who are admitted to 
give evidence against their fellow criminals. Tom. Die. 



LAW OF MAGISTRATES. 19 

2d. When a Magistrate may admit. 

IsL In case of white persons. 
A magistrate has no power to pardon' an offender, or to admit him 
as a witness at all events against others. But where the evidence 
appears insufficient to convict two or more without the testimony of 
one of them, the magistrate may encourage the hope that he who will 
fairly disclose the whole truth shall himself escape punishment; and 
the hope held out by the magistrate is always confirmed by the Court, 
unless there be some important reason to the contrary. 

2d. In case of slaves. 
On the examination of two or more slaves for any offence, if the 
testimony be insufficient to warrant a conviction, a magistrate may 
admit any one who will make a full disclosure, to be a witness against 
the others, with promise of pardon to himself if he testifies fairly. 
"The testimony of an accomplice should in all cases be received with Must bp 

received 

caution, but more particularly in cases of slaves, as they testify not with caution. 
under oath; and it is better not to convict on the testimony of an 
accomplice, unless under the following restrictions : 

1st. The circumstances, or positive proof other than that of the 
accomplice, should point to at least two persons as concerned in the 
offence. Starkie 2, 14. 

2d. He should be confirmed by the circumstances of the case.--— lb. 

3d. His statement be consistent with itself, and with the statement 
made at the time of disclosure- — Ibid. 

Sd. After proceedings. 

If an accomplice confess and charge others, his statement should 
be carefully taken down in writing, and certified under the hand of 
the magistrate within two days; S. L., vol. 2, 483; 2 and 3 P. & M., 
c. 10. The confession should be taken down particularly and duly 
certified; because in case of the death of the accomplice, this confes- 
sion may be evidence on trial of the others. He may be tried and 
convicted on this statement in case he fails to make a full and fair 
disclosure on trial of those concerned with him. After confession 
the accomplice should be committed as for trial, or bailed, if the 
offence be bailable ; and the recognizance should be conditioned for 
his appearance to stand his trial with the others. 



20 LAW OF MAGISTRATES. 

AFFIDAVIT. 

1st. Defnition. 
An affidavit is an oath in writing, sworn to before some person 
having authority to administer such oath. 

2d. Form and Requisites. 

For the form and requisites of an affidavit for any particular case, 
refer to the case. 

It should be entitled of the district and State in which it is taken, 
and contain in full the names and residences of the party taking the 
oath, and others immediately concerned. It should be signed by the 
party taking the oath, and certified by the officer before whom it is 
taken, with the style of his office. If the party taking the oath know 
of the subject matter of his own knowledge, it should be stated posi- 
tively; but if information be derived from others, the statement should 
be, "that he is informed and believes." But if the matter charged 
be only a conclusion from circumstances, the affidavit should be, "that 
he has just cause to believe, and doth believe." If the officer taking 
the affidavit be the person who is to act on it judicially, the circum- 
stances inducing belief need not be set forth at length in the affidavit. 
But if it be intended for the judicial action of another, then the cir- 
cumstances should be particularly set forth. 



AFFIRMA TION. 

Act 1731, S. L., v. 3, p. 281. 

Any person who shall appear in any of the Courts of justice, or any 
judge or magistraie in this province, either as juror, witness, party 
or otherwise, in any cause, civil or criminal, and shall make a solemn 
and conscientious declaration and affirmation according to the form of 
his profession, in any matter, cause or thing wherein an oath is 
required by law, such solemn and conscientious declaration and 
affirmation shall be deemed, held, judged, and taken as valid and 
effectual to all intents, constructions, and purposes whatsoever, as if 
such person had taken an oath on the holy Evangelists of Almighty 
God, and that all and every such person and persons as shall be con- 
victed of falsely and corruptly affirming and declaring any matter and 
thing, which, if the same had been an oath taken on the holy Evan- 
gelists, would by law amount to wilful and corrupt perjury, shall incur 



LAW OF MAGISTRATES. . 21 

the same penilties, disabilities and forfeitures, as persons convicted 
ofwilfut perjury do incur by the laws of Great Britain. 



AFFRAY. 

An affray is the fighting of two or more persons in some public 
place, to the terror of the people. B. C, 4, 145. 

Bare words do not amount to an affray ; nor an assault which words not. 
happens in a private place, out of the hearing or seeing of any, the 
parties excepted ; nor the assembling one's neighbors and friends in 
one's house, against those who threaten to do such person some 
violence therein, nor to any person arming himself to suppress dan- 
gerous rioters, rebels or enemies, and who endeavors to suppress or 
resist such disturbers of the peace and quiet of the State. 1 Haw. 
134, 135, 136. 

If any one sees others fighting, he may lawfully part them, and stayp^i^ate 
them till the heat be over, and then deliver them to a constable to be P^sonmay. 
carried before a justice, to find sureties for the peace ; and if he 
receive any harm by the affrayers, he shall have his remedy by law 
against them ; but if the affrayers receive hurt by his endeavors to 
part them, they have no remedy. 1 Haw. 136. 3 Inst. 158. 

A constable is bound at his peril to use his best endeavors to nart ^ 

'_ • Constable 

an affray which happens in his presence, and also to demand the ^°^"'^ 
assistance of others, which if they refuse to give him, they are pun- 
ishable with fine and imprisonment. 1 Haw. 137. j 

If a constable see persons actually engaged in an affray, or upon 
the point of entering upon an affray, he may carry the ofl'ender before 

.. r^ ^ ■ r 1 t May carry 

a justice, to find sureties tor the peace ; or he may imprison him of^efore 

1 • !•/• !!• .111 •' i justices. 

his own authority, for a reasonable time, till the heat shall be over, 
and he may also detain him afterwards till he find such surety. 1 
Haw. 137. 

A constable has no right to lay his hands on those who barely con- Motunies ■ 
tend with hot words, without any threats of personal hurt : but he ^^^ ^'®^* 
may command them, under pain of imprisonment, to avoid fighting ; 
neither hath a constable power to arrest a man for an affray done out 
of his own view, without a warrant from a justice, unless a felony 
were done, or likely to be done. 1 Haw. 137. 

If an assault be made upon a constable, he may not only defend 
himself, but imprison the offender, in the same manner as if he were 
not a party concerned. 1 Haw. 137. 



1 



22. LAW OF MAGISTRATES. 

If an affray be in a house, the constable may break open the doors 
to preserve the peace ; and if affrayers fly to a house, he may follow, 
and break open the doors to take them. 1 Haw. 137. 
Justice may. A justice of the peace may and must do all such things to the afore- 
said purpose which a private man or constable are either enabled or 
required by the law to do : but he cannot, without a warrant, autho- 
rize the arrest of a person for an affray out of his own view, although 
he may issue his warrant to bring the offender before him, to compel 
him to give sureties for the peace. 1 Haw. 137. 

All affrays in general are punishable by fine and imprisonment. 
1 Haw. 138. 

Warrant to apprehend Affrayers. 

South-Carolina, } 
Dhtrict. 5 

By A. P., magistrate, appointed to keep the peace in and for the 
said District. 

To A. R., one of the constables of the District aforesaid. 
Whereas A. I. hath this day made oath before me, that on the 
day of , in the year , A. O. 

•of and B. O. of , at , in the 

said District, in a tumultuous manner made an affray, vs^herein the 
person of the said A, I. was beaten and abused by them the said 
A. O. and B. O. without any lawful or sufficient provocation given to 
them, or to either of them, by him the said A. I.: these are therefore 
to command you, forthwith to apprehend the said A. O. and B. O. and 
bring them before me, or some other of the justices assigned to keep 
the peace within the said district, to answer the premises, and to find 
sureties for their personal appearance at the next general sessions of 
the peace, &c., to be held for the district aforesaid, then and there to 
answer to an indictment to be preferred against them by the said 
A. I. for the said offence ; as also for their keeping the peace in the 
mean time, towards all the good people of this State, and especially 
towards him the said A. I. Hereof fail not, as you will answer the 
contrary at your peril. ** 

Given under my hand and seal, at , in the district 

aforesaid, the day of , in the year 

of our Lord 

A. P. [l. s.] 



LAW OF MAGISTRATES. 23 

ALIENS. 

1st. Who is an Alien, and of their Privileges and Disa- 
bilities. 

3d. Op Denizens. 

3d. Of Naturalization and of the Rights and Disabilities 
OF A Naturalized Citizen. 

4th. Precedents. 

1st. Who is an Alien, and of their Privileges and Disabilities. 

An Alien is any person born out of the jurisdiction of the United One bom 

•' *^ J out of United 

States, who was not an inhabitant thereof at the time of the Decla- states. 
ration of Independence, or has not been admitted as a citizen accord- 
ing to the Act of Congress. Yet this must be understood with some 
limitation, lor though a person be born without the limits of the United 
States, yet if his father be a citizen thereof, and have resided within Not if father 
its limits, the right of citizenship will descend to such person. 2 S. 
U. S. L., 853. An Alien is entitled to the protection of the laws. Entitled to 
and owes obedience to them so long as he may remain under their ^'° ^*^ '°"' 
jurisdiction. He may hold personal property, may loan money on May hold 
mortgage of personal or real estate, and maintain a suit for its fore- property. 
closure. 4 S. L., 642. He cannot take real estate by descent. 
Ennas vs. Franklin ; 2 Bre. R., 398; but may take by purchase, and 
hold until divested by escheat ; and if, before escheat, he be admitted 
to the privileges of a citizen, such admission will confirm the title in 
him. Laurens ads. Jenney and others ; 1 Spear, 356. He is not 
subject to jury duty, but unless he be a bona fide French citizen, (in 
which case he is exempt by treaty from all personal service,) he is 
subject to militia and police duty. By the Act of 1828, a widow alien 
may take by descent or will the lands of a deceased husband. 6th 
S. L., 363, 

2nd. Of Denizens. 
By the Act of 1799, an alien friend may become a denizen by be- How an 

. Alien may 

coming a resident of the State, by taking and subscribing the oath or become, 
affirmation of allegiance before one of the judges oi the Court of 
Common Pleas, who gives a certificate of the fact, which certificate 
must set forth the place of nativity and former residence of the party, 
and if given to a family, the name and age of each declared on the 
oath of the head thereof, shall be inserted, and such certificate should 
be recorded in the oflSce of Secretary of State, either at Charleston 
or Columbia, within sixty days. A compliance with the requisites 



24 



LAW OF MAGISTRATES. 



Two years 
notioe. 



May hold of this act entitles the party to purchase and hold real estate, but not 
to vote at elections, or to hold any office of profit or trust in the State. 

3(Z. Of Naturalization, and the rights thereby conferred. 

Any free white alien friend may become entitled to most of the 
rights of a native born citizen, by complying with the various requi- 
sites of the Acts of Congress, in reference to naturalization. The 
requisites of the said Acts are as follows : 

1st. That he shall, at the time of application, have resided within 
fivcVears.° the United States for tit least five years, and one year within the 
State or territory where he applies ; 2 S. U. S. L., 851; and it must 
have been a continuous term of five years immediately preceding his 
application, without his having been, at any time during said term, 
out of the territory of the United States, of which the Court must be 
satisfied by testimony other than that of the applicants, and that during 
that time he has behaved as a man of good moral character, attached 
to the principles and constitution of the United States, and well dispo- 
sed to the good order and happiness of the same. — lb. 1304, sec. 12. 

2ndly . That he shall, two years before his application , have declared 
on oath or affirmation, before some Court of record of one of the 
States, or of the territorial districts of the United States, or a Circuit 
or District Court of the United States, that it was bona fide his inten- 
tion to become a citizen of the United States, and to renounce forever 
all allegiance and fidelity to any foreign prince, potentate. State or 
sovereignty, of which he may at the time be a subject. — Ibid, 851, 
sect. 1st and 3d; 3 S. U. S. L., 1974. But if such applicant shall 
have resided within the United States for three years before arriving 
at the age of twenty-one years, he may after having resided in the 
United States for five years in all, and after he is of age, be admitted 
a citizen without such declaration of intention. Provided, that at 
the time of his application he shall declare on oath and prove to the 
satisfaction of the Court that it was bona fide his intention for three 
years previous to become a citizen of the United States. — Ibid, 1974, 
sec. 1st. Or, if an applicant can prove to the satisfaction of the Court 
that he was resident in the United States before the 18th day of June, 
1812, and by the oath or affirmation of witnesses, citizens of the 
United States, who shall be named in the record as witnesses, that he 
resided there for at least five years immediately preceding his appli- 
cation, such person may be admitted without proof of declaration of 
intention. The place of residence and the names of the witnesses 
must in such case be set forth in the records of the Court. 



In case of 
residence 
before 
twenty-one. 



Residence 
before 1812. 



LAW OF MAGISTRATES. 25 

3dly. He shall, at the time of his application to be admitted, declare Take the 
on oath or affirmation, before one of the Courts aforesaid, that he will 
support the Constitution of the United States, and that he doth abso- 
lutely and entirely renounce all allegiance to every foreign prince, 
potentate, State or Sovereignty whatever, and particularly by name, 
the prince, potentate, State or Sovereignty whereof he was before a • 

subject, which proceeding shall be recorded by the Clerk of the 
Court. 

4th]y. If the applicant has borne any hereditary title, or has been Renounce 
of any of the orders of nobility in the Kingdom or Slate from which 
he came, he shall make an express renunciation of his title or order 
of nobility in the Court to which his application shall be made. — 2d 
S. U. S. L., 851. On complying with these requisites, the applicant 
will receive from the Clerk of the Court, unrfer the seal thereof, a 
certificate of his naturalization, which naturalization entitles not only Certificate. 
the applicant but his children, who shall be under the age of twenty- 
one years, and dwelling in the United States at that time, to all the 
rights and privileges of native born citizens, except that he must have Rights and 

° '_ ^ ' r disabilities. 

been a citizen for three years before he can be a member of the 
House of Representatives, and five years before he can be a membe*r 
of the Senate of this State; and to enable him to hold the office of 
Governor, he must have been ten years a citizen. In some of the 
iitates, he can never hold the office of Governor. He must have been 
seven years a citizen to entitle him to a seat in the House of Represen- 
tatives, and nine years to one in the Senate of the United States, and 
can never be President of the United States. 

4th. Precedents. 
United States of America, } Notice of 



i 



State of South- Carolina. 

To the Honorable and 

Esq., Clerk of said Court. 

The Petition of aged years, following 

the profession or occupation of : Respectfully sheweth, 

That your Petitioner was born in , that he arrived 

in the United States, to- wit. That it is the bona fide 

intention of your Petitioner to become a citizen of the United States 

of America, being sincerely attached to the Constitution of the said 

States, and is willing to renounce all allegiance and fidelity to every 

foreign prince, potentate, State or Sovereignty, whatever, particularly 

. That he has never borne any hereditary title, or 

4 



Intention. 



26 LAW OF MAGISTRATES. 

been of any order of nobility \Yhatever. He therefore prays your 
Honor to order that declaration of his intention to be registered, and 
^he usual oath be administered to him. 

Be it so. 
The L xited States of America, } 
State of South-CaruJina. \ 

Personally appeared , who 

being duly sworn, deposes that the contents of his petition are just 
and true, and that it is bona fide his inteution to become a citizen of 
the United States of America, being sincerely attached to the Consti- 
tution of the said State?, and to renounce forever all allegiance and 
fidelity to every foreign prince, potentate. State or Sovereignty, what- 
ever, particularly to 
whereof he is a 

Sicorn to in open Court, this } 

clay of 18 ^ 



UNITED States of America, ) 
South-Carolina District. ^ 
petition for 'To the Honorable 
citizenship. ^jjg petition of . ■ 

aged years, following the profession or occupation 

of : Respectfully sheweth, That your 

petitioner was born in , that he arrived 

[ Here insert the place and time of arrival, and set forth the decla- 
ration of intention, or the arrival under eighteen years of age.'] 

That your petitioner is desirous of becoming a citizen of the United 
States of America, being sincerely attached to the Constitution of the 
said States, and is willing to renounce all allegiance and fidelity to 
every foreign prince, potentate, State or Sovereignty, whatever, par- 
ticularly . That he has never borne 
any hereditary title, or been of any order of nobilit}- whatever. He, 
therefore, prays your Honor to admit him a citizen of the United 
States, and that the usual oath be administered to him. 

A. B. 

We, the subscribers, citizens of the Llnited States of America, do 
hereby certify, that we have known the petitioner 
for years last past, during which time he has resided 

within the United States, to wit, and within this 

State upwards of one year. That he has behaved during that time 
as a man of good moral character, attached to the principles of the 



LAW OF MAGISTRATES. 27 

Constitution of the United States, and well disposed to the good order 
and happiness of the same. 
Sworn to before me this 



APPEAL. 

An appeal is the application to a higher Court to reverse the deci- Definition, 
sion of a lower, upon certain grounds set forth in the notice of such 
application, and made to appear by report of the cause loy the presi- 
ding officer of the Court below. 

1st. In what Civil Cases Appeal lies. 

2d. Notice, Bond, Report, &c. 

3d. Criminal Cases. 

Ist. In what Civil Cases appeal lies. 

In all cases tried before a magistrate, where the demand sued forAU cases 

_ _ _ over $-2, 

exceeds the sum of two dollars, either .[larty dissatisfied,, may have an 

appeal to the Common Pleas. Act 1839, p. Ic, sec. 16 

By sec. 25, p. 22 of the same Act, the right of appeal in cases in cases of 

■^ , . ■ r T , Master and 

between master and apprentice, is prerserved. In cases between Apprentice, 
landlord and tenant, for holding over, and in forcible entiiy and detainer, None in 

, . , . d T Landlord 

there is no appeal. Act 1812, 5 S. L., 6/7. and Tenant. 

2d. Notice, Bond, Report, and so forth. 
The notice of appeal from the decision of a magistrate, should be 
within two days after the decision. Act 1839, p. 18. After notice, 
the party is entitled to two days to give bond and sufficient security. 
The sufficiency of the surety to be determined by the magistrate. The 
bond should be in the following form. Act 1839, p. 18. 

State of South-Carolina, } 
District. \ 

A. B ^ 

' f Appeal from Magistrate. 

p 't\ C a. B. or C. D., Appellant. 

I (or we) hereby agree to stand security for the appellant in this 
case. 

Signed in the presence of ^ 

E. F., \ [l. s.] 

Magistrate. ) [l. s.] 

If the appellant fail in his appeal, he and his surety become liable 
to immediate execution from the Court of Common Pleas tor the costs, 



28 LAW OF MAGISTRATES. 

or the debt, interest, and costs as the case may be. After notice and 
taking bond, the magistrate should make a report of the case, carefully 
stating all the material testimony, with the reasons of his decision, 
which report, with the bond, should be lodged by him in the office of 
the Clei k of Common Pleas, before the term of the Court next ensuing. 

Sd. Til Criminal Cases. 
None except No appeal is allowed in any criminal case, before a magistrate, 

ill capital . . . - . , ~, i-> 1 n 

case. except It be on conviction lor a capital oiience. By the Act of 1833, 

when any slave or free person of color shall be convicted of a capital 
ofTence, and sentenced to suffer death, application in his behalf may 
be made to any one of the circuit judges or judges of the Court of 
Appeals, either in open court or at Chambers, for a new trial. And 
a full report of the case shall be made and attested by the justices who 
preside at the trial, upon application therefor, and the execution of 
the sentence shall be suspended ; and if from the said repoit, or from 
that, in connection with satisfactory affidavits of matters not therein 
stated (which affidivits shall be shewn to the justices before they are 
pi'esented to the judge,) it shall appear to the judge that the convic- 
tion has been erroneous, the prosecution shall be as in case of a new 
complaint, provided that no one of the justices or freeholders, who 
served on the^rst shall serve on the subsequent trial. 



APPRENTICE. 

\st. Who may take. 
Any person of any lawful employment, calling, art, mystery, or 
trade, may take an apprentice; 3 S. L., 544. 

2d. Deed and Requisites. 
Father, Anv infant may be bound an apprentice by deed of indenture certi- 

M .ther, &c., '' •' . 

."l"l'„„ ^^^ under the hand and seal of a magistrate. The deed should set 
forth the presence and approbation ot the father, mother, or guardian 
of such infant; and it the infant have neither father, mother, or guar- 
dian, then the presence and approbation of the grandfather, grand- 
mother, brother, sister, uncle or aunt, of mature age, or the approval 
of the magistrate before whom it is executed, each in the order above 
enumerated. The other matters chiefly to be contained in the deed 
of indenture, are the full names of the parties, the trade to be taught, the 
term of service, and the provision for the apprentice. 



approve. 



LAW OF MAGISTRATES. 29 

Sd. Who may hind poor apprentices. 

Beit enacted, that the Commissioners of the Poor shall have power Commission- 
to bind out to service illegitimate children, and children of paupers, may. 
in all cases where such children are likely to become chargeable to 
the district, or are liable to be demoralized by the vicious conduct 
and evil example of their mothers, or other persons having the charge , 
of them; and it shall be the duty of the Commissioners of the Poor in '' 
each and every district of this IState, upon informilion made to them 
that any legitimate child abov^e the age of five years is likely to 
become chargeable to the district, or from the vicious conduct and 
evil example of the mother of said child, or other person having it 
in charge, is likely to become demoralized and brought up in vice 
and idleness, to cause such child to be bound to service in charge of 
some person of good character, a female child until she attains the 
age of sixteen years, and a male child until he attains the age of 
seventeen years. Act 1830, 6th S. L., 410. 

By the Act of 1831, 6th S. L., 432, the term for which a female 
may be bound, is extended to the age of eighteen, or until she marries, To what age 
and the male to the age of twenty-one years. 

4/7i. When and how indentures may he assigned. 
On good reason shown for the ttansfer of an apprentice, or if the 
master or mistress be dead. The indenture may be assigned in the 
first case by the master or mistress, and in the latter by the executor 
or administrator. The assignment should be before a magistrate, Must be 
who should certify under his hand and seal the presence and appro- magistrate, 
bation of the party whose assent would be necessary to bind said 
apprentice. Act 1839, p. 22. 

bth. Relative duties of Master and Apprentice. 
An apprentice owes obedience to all the lawful commands of his 
master; and if he be disobedient, he mav be moderately corrected bvMaybe 

. . '• 1 11- /corrected. 

the master, though any unnecessary violence or degradation would 
be illegal; nor can the authority be delegated; 1 Chit., 71. So the 
whole service of the apprentice is due to the master; and if the v^hoie 

scrvicG dud 

apprentice absent himself from the master's service, his earnings are 
the master's; Burn's Justice, 101. If an apprentice desert his mas- 
ter and work for another, the master may sue as for hire; Lightly vs. 
Clauston, 1 Taun,, 112. It is the duty of the master to instruct the Duty of 

' •' ^ Master. 

apprentice; but his liability for food, clothing, lodging, and so forth, 
will depend on the terms of the binding; and a stipulated amount in 



:]o 



LAW OF MAGISTRATES. 



Not liable 
for medical 
aueiidance. 



To furnish 
arms for 
muster 



Punishment 
of an appren- 
tice for 
failure. 



money is frequently given in lieu of all other liabilities. Upon an 
ordinary covenant to furnish an apprentice meat, drink, clothing, 
lodging and washing, the master is not bound to furnish medical 
attendance, and would not be liable for a physician's bill, unless he 
was employed at the instance of the master. Percival vs. Noviter, 
1 N. & M. 452. By the Act of Assembly of 1841, page 210, every 
person to whom any male white apprentice, liable to militia duty is 
bound, is required to furnish him during the time of his servitude, 
with the arms and equipments prescribed by the Act of Congress, and 
to compel him, duly armed and equipped, to attend all drills and mus-' 
ters as he m:iy be required by law, and in default of his attendance, 
or deficiency of his arms, the master shall be liable to the fine imposed 
on a private. If the master has done his duty iu this respect, and the 
apprentice fail to appear, or appear without such arms and equip- 
ments, two weeks shall be added to his term of servitude for every 
such failure, and if he embezzle, sell, or make away with his arms or 
equipments, besides being liable for the value thereof, he is liable to 
indictment, and on conviction, to a fine not exceeding fifty dollars, 
and to imprisonment not exceeding one month. 



Two Magis- 
trates to 
determine. 



Appeal to 
C. P. 



Whether 
they may 
punish. 



Master 
indictable 
/or cruelty. 



6th. Matters of difference between Master and Apprentice. 

On complaint made by an apprentice, charging his or her master 
or mistress with misuse, or by the master or mistress against such 
apprentice, before any two magistrates of the district, setting forth the 
cause of such complaint, it shall be the duty of such magistrates to 
make such order between the parties as the equity and justice of the 
case may require, subject nevertheless to the right of either party to 
appeal from such order to the Court of Common Pleas for the district, 
at the next ensuing term ; A. A. 1839, p. 22. Concerning which, it 
is to be inquired how fiir the general terras of this act extends the 
power of the magistrates. Observe that the Act of 1740, P. L., 
177, gives the same general power with the right of appeal to the 
chief justice, and two assistant judges ; with the further proviso, that 
if it seem fit to them, they may discharge the apprentice, or admin- 
ister to him due punishment and correction. 

Now, since the .\ct of 1839 is silent in these particulars, and makes 
the jurisdiction of the Common Pleas only appellant in the matter, it 
may well be inferred that the power of punishing the apprentice, or 
ofdischarging him from his indentures, is extended by it to the magis- 
trate. See Belcher e' ux vs. Commissioners; 2 IMc. 23. If it appear 
that the treatment of an apprentice by the master or mistress has been 



LAW OF MAGISTRATES. ;U 

cruel, he or she should be bound over to the Sessions ; 1 Chit. 72. 
If any accident happen to an apprentice which renders him incapable 
ot serving his master, it has been ruled that this is no ground for dis- 
charging the master from the apprentice. Str. ^9. 

1th. Forms. 
The State of Soutii-Carolina. 

This Indenture witnesseth. That hath put self, and Apprfntices- 

« ' Indenture. 

by these presents, by and with the cons<^nt and approbation of 

doth voluntarily, and of own free will and accord, put 

self Apprentice unto to learn art, trade, and 

mystery, and after the manner of an apprentice to serve the said 

from the date hereof, for, and during, and unto the end and 
term of next ensuing. During all which term, the said 

apprentice, said faithfully shall serve, secrets 

keep, lawful commands, every where, readily obey : 

shall do no damage, to said nor see it done by 

others, without letting or giving notice thereof to said 

shall not waste goods, nor lend them unlawfully to any ; nor 

contract matrimony within the said term. At cards, dice, or any 
unlawful game, shall not play, whereby said 

may have damage. With own goods, nor the goods of others, 

without license from said shall neither buy nor sell; 

shall not absent self, day nor night, from said 

service, without leave; nor haunt ale-houses, 

taverns, or play-houses ; but in all things behave self as a 

faithful apprentice ought to do, during the said term. And the said 
shall use the utmost of endeavor to teach, or cause 

to be taught, or instructed, the said apprentice in the trade or mystery 
of a . and procure and provide for sufficient meat, 

drink lodging and washing, fitting for an apprentice, 

during the said term of . And 

for the true performance of all and singular the covenants and agree- 
ments aforesaid, the said- parties bind themselves, each unto the other, 
firmly by these presents. 

In witness whereof, the said parties have interchangeably set their 
hands and seals hereunto. Dated the 
day of in the year of our Lord one 



32 LAW OF MAGISTRATES. 

thousand eight hundred and and in the 

year of the Sovereignty and 
Independence of the United States of America. 
Signed, sealed, and delivered, } 
in the presence of ^ 

[L. S.] 

- [L. S.] 

[L. S.] 

Assignment of Indenture. 

The simplest form is by assignment on the indenture, as follows: 

I, A. B. (masteror mistress, or executororadministratorof C. D., 
master or mistress) of E. F., the within named apprentice, by and 
with the consent and approbation of B. D., his father, or mother, or 
guardian, and so forth, as the case may be, for divers good causes and 
considerations, we hereunto moving, do hereby assign, transfer, and set 
over unto A. S. , all right, title, duty, and term of service, which I have 
in the said apprentice, by virtue of the written indenture ; the said 
A. S. binding himself well and truly to perform all the duties and 
obligations required of the master by the within indenture. 

Dated at the day of 184 

Signed and sealed in "^ (The Apprentice,) [i,. s.] 

the presence of ! (The Father,) [l. s.] 

(B. C.) [l. s.] [ (The Master or Executor,) [l. s.] 

Magistrate. J (The Assignee,) [l. s.] 

Complaint of an apprentice to two justices of his master. 

District, > s. s. 

The information and complaint of A. P., apprentice to A. M., of 
in the said district, carpenter, taken and made 
{say on oath if he is not above fourteen years of age) before us, two 
of the justices assigned to keep the peace in and for the district afore- 
said, the day of , in the year , 
who saith, that he the said A. P., about twelve months ago last past, 
became bound an apprentice by indenture to A. M. of , 
in the district of , carpenter, that at ceveral times 
since he entered upon the said apprenticeship, the said A. M. hath 
misused and ill treated him the said apprentice, and particularly (here 
recite the circumstances in particular of the ill treatment com- 
plained of.) 

Taken and signed the day and } 
year aforesaid before us. ^ A. P. 

H. P. 
R. S. 



LAW OF MAGISTRATES. 33 

Warrant against the Master for misusing his Apprentice. 



District. 

By H. P. and R. S., two of the justices assigned to keep the peace 
in«and for the district aforesaid — To all and singular the constables 
of the said district. 

Whereas complaint hath been duly made unto us, by A. P. appren- 
tice unto A. M. of , in the said district, carpenter, that 
the said A. M. hath misused and evil entreated him the said A. P. 
by cruel punishment (and beating him, the said A. P. without just 
cause, or by not allowing to him the said A. P. sufficient meat, drink 
and apparel, as the case may be.) 

These are, therefore, to command you, to cause the said A. M. 
personally to appear before us, at the house of , on the 

day of , at the hour of in 

the morning of the same day, to answer to the said complaint ; at\d 
also to cause the said apprentice to appear before us at the same time 
and place, to make good his said complaint. Hereof fail not, as you 
will answer the contrary at your peril. Given under our hands and 
seals this day of , in the year 

H. P. [l. s.l 

R. S. [l. s.] 

Complaint of the Master against his Apprentice to two justices. 

District. > ss. 

The complaint of A. M. of , in the district aforesaid, 

carpenter, taken on oath, before us H. P. and R. S. two of the 
justices assigned to keep the peace in and for the district aforesaid, 
the day of , in the year , 

who saith, that A. P., apprentice by indenture to him the said A. M., 
hath in thd service of his apprenticeship, been guilty of several mis- 
demeanors, miscarriages and ill behavior, and hath been refractory 
and disobedient to him, the said A. M., and particularly (here recite 
the circumstances in particular of the ill behavior complained of.) 

A. M. 
Taken and signed the day and year aforesaid, before us. 
H. P. 
R. S. 

Warrant against the Apprentice on complaint of the Master. 
District. > ss. 

By H. P. and R. S., tvi'o of the justices assigned to keep the peace 
in and for the district aforesaid. 
5 



34 LAW OF MAGISTRATES. 

Whereas complaint hath been duly made unto us, by A. M. of 
, in the district aforesaid, carpenter, that A. P., now 
being an apprentice to him the said A. M. hath been guilty of several 
misdemeanors, miscarriages and ill behavior, or is refractory and 
disobedient (as the case may be) to him the said A. M. his master; 
these are to command you to bring the said apprentice before us at 
, on the day of , at the hour 

of in the morning of the said day, to ansvi'er to the said 

complaint, and to be dealt with according to law ; and you are to 
give notice to the said master, that he appear before us at the same 
time and place, to make good the said complaint. Hereof fail not, 
as you will answer the contrary at your peril. Given under our 
hands and seals this day of , in the year 

H. P. [l. s.] 
R. S. [l. s.] 



ARBITRATION. 

Arbitration is where the parties submit their matter of controversy 
to the judgement of two or more arbiti ators, and if they do not agree, it 
is usual to add that another person be called in as umpire, to whose 
sole judgment it is then referred. 

1st. Who may submit to Arbitration. 

2nd. What may be submitted. 

3d. Several various modes of submission. 

4th. Revocation. 

5th. Power and Duties of the Arbitrator. 

6th. Umpire. 

7th. The Award. 

8th. Forms. 

1st. Who may submit to Arbitration, 
Persons who cannot contract, cannot submit to arbitration. Therefore 
women'' & "^^^ried women, and persons compelled by threats and imprisonment, 
may not. cannot submit ; Burns' Justice, 136. The husband may submit the 
chattels he has in right of his wife ; for he may dispose of them — he 
may also submit to arbitration chattels, which the wife has, as executrix 
or administratrix. — Ibid. If an infant submit to arbitration, he may 
execute or avoid it at his election. — Ibid. An executor or adminis- 
trator may submit matters to arbitration, and the award will be bind- 
ing on the estates they represent. — Swicard vs. Adm's of Swicard. 
2 M. Con., 218. 



LAW OF MAGISTRATES. 35 

2nd. What may be suhmitted. 
All matters of controversy, either of fact or of right, to things and 
actions personal and uncertain, may be submitted to arbitration. Mat- Matters 

r 1 J ' certain and 

ters certain may also be submitted in connection with matters uncer- "nceitain. 
tain. Causes, criminal, are not determinable by arbitration, because ^ . . , 
the perpetrator of crimes should be made known and punished for the causes not. 
common good ; and the State, in such cases, is a party for whom the 
other parties cannot undertake. But if the injured party proceeds, 
by way of action, as he may in assaults and batteries, libels and the 
like, the damages may be submitted to arbitration. Matters relating Except 
to the contract or dissolution of marriage, cannot be submitted to damage. 
arbitration. But the damages a person may have sustained by a 
promise of marriage, or any thing relating to a marriage portion, 
may be submitted; Burns' Justice, 137-'38. Whether a dispute Realty. 
concerning a freehold, may be submitted to arbitration, by parol, is 
undetermined, but it may be submitted by deed. Leatherwood vs. 
Woodruff, 2 Brev. R., 380. 

Zd. Various modes of submission. 

A submission by words is good, and the party in whose favor the By words, 
award is made, has a remedy to enforce the performance of it. Yet 
it is not expedient that any submission should be by parol, because 
either party may, by words, revoke it at any time before the award 
is made. 

Submission may also be made by covenant, but this method is not By covenant 
oflen practised. 

Submission,by rule of Court, is made in pursuance of the statute jjyruie of 
9 and 10 Wil. c. 15, which is as follows: "It shall be lawful *^°*'"- 
for all merchants and traders, and others, desiring to end any contro- 
versy, suit or quarrel (for which there is no other remedy but by 
personal action, or suit in equity) by arbitration, to agree that their 
submission to the award, or umpirage, be made a rule of any of his 
Majesty's courts of record which the parties shall choose, and to 
insert such agreement in their submission, or the condition of the 
bond, or promise, whereby they submit themselws ; which agreement 
being so made, and inserted in their submission, or promise, or con- 
dition of their respective bonds, shall or may, on producing an affidavit 
thereof, made by the witnesses thereunto, or any of them, in the Court 
of which the same is agreed to be made a rule, and reading and filing 
the said affidavit in Court, be entered of record in such Court ; and a 
rule shall thereupon be made by the said Court, that the parties shall 



36 LAW OF MAGISTRATES. 

submit to, and finally be concluded by such arbitration, or umpirage : 
and in case of disobedience to such arbitration or umpirage, the party 
neglecting or refusing to perform the same, or any part thereof, shall 
be subject to all the penalties of contemning a rule of Court ; and 
the Court on motion shall issue process accordingly ; which process 
shall not be stopped or delayed in its execution, by any order of any 
other Court of Law or Equity, unless it shall be made appear, on 
oath, to such Court, that the arbitrators or umpire misbehaved them- 
selves, and that such award was procured by corruption or other 
undue means. 

And this is allowed to be the most expeditious way; and the method 
is to get a counsel to move in any of the Courts to have it made a 
rule, which, in such case, is never denied: and then the party is 
liable to the same penalties that he would be for disobeying any other 
rule of Court. Compl. Abr., 6, 47. 

Although this statute of William is not made of force in this State, 
yet the proceedings of the Courts in cases of awards, have hitherto 
been conducted agreeable to this statute, until January term, 1787, 
when the following rule was made by the Court. 

Upon the return of an award, or umpirage, a one day rule shall be 
served upon the party, or his attorney, against whom the award or 
umpirage shall be made, to show cause why the award or umpirage 
should not be confirmed ; and if the award or umpirage should be 
confirmed by the Court, then judgement shall be thereon entered, and 
execution issued against the body or goods of the party, in the same 
manner as if a judgement had been obtained by verdict of a jury ; by 
which the proceedings pointed out by the Act of Parliament, upon the 
return of the award, is hereby altered ; as, instead of an attachment, 
the process is by judgement and execution against the body or goods 
of the party. 40th Rule. 

The agreement to a reference must be expressed with great caution 
and accuracy; for if it is agreed to refer all matters in difference 
betiveen the parties in the cause, the arbitrators are not confined to the 
subject of the cause alone, as they are w^hen it is agreed to refer all 
matters in difference ifi the cause between the parties. 2 T. R., 645. 

Yet after an award under a reference in the first case, either party 
may maintain an action for a right or demand subsisting at the time 
of the reference, but not disputed or referred to the arbitrators. 4 
T. R., 146. 

By Bond. The best and most usual mode of submission is by bond, in which 

case, each party must give the other a bond, both of which must con- 



LAW OF MAGISTRATES. 37 

tain exactly the same words, only changing the names. And the 
penalty of the bond should exceed the amount in dispute, or the value 
of the thing submitted, so as to cover the award and damages for refu- 
sal to comply. Burns, J., 140. 

4:th Revocation. 

A submission by words may be revoked at pleasure, and the party 
revoking forfeits nothing; but it will be necessary for him to give 
notice of the revocation, though it need not be in writing, and such ^^ "°''"=®- 
notice must be to the arbitrators themselves. Burns, 141. 

A submission by deed may be revoked by deed, and notice of revo- 
cation before award made, but the arbitrators are right in afterwards 
proceeding to award, because the party continuing in submission is 

t^ ° r ./ o Arbitrators 

entitled to his action for damages on non-performance of the covenant to proceed 

, in some 

to stand by the award. So, if bound in a penalty, the penalty is not cases, 
avoided by the revocation. King vs. Joseph, 5 Taunt, 452. 

Under the Rule of Court, there is no provision for a case of revo- Under Rule. 
cation, but the probabilities are, that in such case, the Court would 
proceed to judgment on the award, unless for good cause shewn to the 
contrary. 

The death of either party, at any time before the award, determines By death. 
the power of the arbitrators. 2 Tidd, p. 877. 

If a woman submit a matter to arbitration, and marries before By marriage, 
award made, it will be a revocation, and if another be concerned 
with her, it will be a revocation as to that person also. Burns' 
Justice, 141. 

5th. Power and Duties of Arbitrators. 

As to evidence, arbitrators have no power to administer an oath, j^-^t admin- 
and a person cannot be indicted for perjury on an oath taken before '^'" °^'^* 
them; State vs. McCroskey, 3 Mc. 308. They may examine the j^jgy exam- 
parties as witnesses, unless this is expressly guarded against by the parties. 
submission ; Askew vs. Kennedy, 1 Bail., 46. If they examine the 
parties, they may also examine a witness, who is interested. Lloyd 
vs. Archbowle, 2 Taunt, 324. 

All the witnesses of a party must be heard, or it will be good ground .^^ ^^^ 
for setting aside the award. Bedingson vs. Souihall, 4 Price, 232. ^'! ''"' 

° o ' ' witnesses. 

As to matters referred, the power of the arbitrator is confined tOcongnedto 
the matters submitted, and if the submission be by deed or l)ond, the J^fgrred. 
terms thereof cannot be extended by parol ; Sessions vs. Barfield, 
2 Bay, 94. But with respect to matters submitted, they may go farther 
than the Court to do complete justice, and therefore may relieve May relieve 
against a harsh right. Knox vs. Symonds, 1 Ves., Jun., 367. case. 



38 



LAW OF MAGISTRATES. 



Award 
Interest. 



Also 
compound. 



One party 
absent. 



By the 
parties. 



By arbitra- 
tors. 



Not by lot. 



Y 



So they may put the law out of the question and award the payment 
of a conscientious demand, though it be not binding in law. Delor 
vs. Barnes, 1 Taunt, 48. 

An arbitrator may award interest, though on a matter not bearing 
interest in law. In re Bodger 2 B. & A. 691. 

So also, he may allow compound interest on a contract for it, either 
expressed or to be inferred from the nature of the dealings between 
the parties. Morgan vs. Master, 2 Ves., Jr.; 15. 

An arbitrator may award costs without any express authority for 
that purpose ; Roe & Wood vs. Doe, 2 T. R , 644. If one of the 
parties will not attend, he may proceed ex pai-te without giving him 
notice. Harcourtvs Ramsbottom, 1 J. and W., 512. 

Qth. Of the Umpire, his Power and Duties. 

An umpire is either chosen by two persons disputing, or by the 
arbitrators, according to the terms of the submission. Where the 
umpire is chosen by the parties, it is usual to name him at the same 
time that the arbitrators are chosen. But when by the terms of the 
submission the arbitrators have power to choose, it may be done either 
before they enter upon the matter referred, or at any time before 
award ; Peck vs. Wakely, and Wilson, 2 McCord, 279. The umpire 
must be by actual choice of arbitrators, and choosing by lot between 
two persons named, is not good. ' 

The umpire is governed by the same rules of evidence, and has the 
same power over the subject matter as has been set forth in treating 
of the power and duties of arbitrators, with this exception, that he 
may proceed to determine the matter referred, upon the report of the 
arbitrators, and without re-examining the witnesses, unless he is direct- 
ed to do so by the terms of the submission, or it is required of him by 
one of the parties before he makes his award. Sharp vs. Lipsey, 
2 Bail., 113. 

Ith. Of the award, how it may be made, and for what. 
The award should be in writing, and its requisites are, that it be, 
1st. According to the very terms of the submission, in respect to 
the persons and things submitted. 2ndly. It ought to be equal and 
not on one side only, for it must appoint either party to give or do 
something beneficiil or advantageous. 3dly. The performance must 
be legal and possible. 4thly. There must be a means, by law, to 
attain to the thing awarded, and this is chiefly meant where the sub- 
mission is without bond. 5thly. It ought to be certain and final, and 
make an end of all controversies submitted, or if it is good only in 



LAW OF MAGISTRATES. 39 

reference to part of the things submitted, it must be final as to that 
part, or it will be void. Burns' Justice, 142. 

First. An award should be according to the submission, for if an According to 

. • ^ ■ ^_ 1. submission. 

award be made of any other thmg than what is contained m the sub- 
mission, it is void. 

Secondly. An award should be equal ; this should be understood Equal, 
thus; that all controversies being between two parties, that which is 
awarded to be done to one must be an advantage to both, so as to end 
the controversy, and discharge one as well as give satisfaction to the 
other; for if it does not, it is manifestly unjust, and therefore when- 
ever it appears to the Court that notwithstanding the award, the thing 
remains a duiy as before, and is not discharged, that apparently is an 
award on one side, and consequently void. Not that where one party 
is by the award to have something paid him and not the other ; that 
that award should be naught, for perhaps nothing may be due to him. 
Burns' Justice, 145. 

Thirdly. The performance of the award should be legal and pos- Legal and 
sible. If the arbitrators award any thing impossible, it is void, — as, 
that one of the parties shall do a thing which is out of his power. If 
the thing become impossible by the act of God, the party is excused. 

Fourthly. There must be a means by law to attain the thing Means by 
awarded. 

If it be awarded that a person shall procure a stranger to do a thing, 
and he has no means by law to compel the stranger to do it, the 
award is void, but if he has means to compel the stranger, the award 
is good. So an award that he shall be bound with sureties, is void 
as to the sureties. 

Fifthly. An award ought to be certain and final, for if it does not certain and 
determine the matter, it becomes a new controversy. Burns' J., 147. 

An award may be by a majority of the arbitrators, and it is not By majority, 
necessary that all should concur. Black ads. Pearson, 1st M., 137. 

An award will not be set aside, except for corruption or partiality corruption. 
in the arbitrators, or for some manifest error committed by them.- ^' 
Askew vs. Kennedy, 1 Bail., 46. 

Awards are not to be set aside, unless for corruption or misbehavior 
in the arbitrators ; except in cases of gross errors or mistakes, the 
Court will always construe them liberally, and not scan them too Gfoss nrrors. 
nicely, so as to defeat the ends of the reference, but will lend every 
aid to carry them into execution. 

It is a general rule in equity, that when it appears that any one of 
the arbitrators was any way interested in the matters in controversy, 
the award is to be set aside. Compl. Arb. 75. 



40 LAW OF MAGISTRATES. 

And it is the strongest argument of partiality, to show that the arbi- 
trators received, from either of the parties, any considerable sum of 
onTplny^ money, or any other present, which may be a temptation to act cor- 
ruptly ; but the sum or present must be proved to be so exorbitant, as 
to induce the Court to believe that it biassed their judgments, other- 
wise it will be of no effect. Compl. Arb., 76. 

In the case of Shepherd and Brand, T. 7, G. 2, on a rule to show 
cause why an award should not be set aside, one exception was, that 
before making the award, the arbitrators insisted upon three guineas 
apiece, to be paid to them by each of the parties, for their trouble and 
expenses ; that the defendant refused doing it on his part, upon which 
the plaintift" paid the whole money : by the Court; where arbitrators, 
let their characters be otherwise never so unexceptionable, take money 
of one of the parties singly, whether for charges or any thing else, 
before making their award, as this is a matter of so tender a nature, 
that even the appearance of evil is to be avoided, and this practice 
may be of dangerous example, it is sufficient cause to set aside the 
award ; for if this should be suffered, it will be hard to distinguish 
what is corruption. 2 Barnardist, 463. Cases in the time of Lord 
Hardwicke, 54. 

8t7i. Forms. 
In pursuance of the within Rule of Court to us directed, we W. C. 
and J. C, in obedience thereto, having examined all matters in differ- 
ence between the said parties, antecedent to the death of the said 
H. C, do award that the sum of thirty pounds, fifteen shillings and 
five-pence, sterling money, is due to the said G. D., from the estate of 
the said H. C. deceased. Witness our hands and seals, the 
day of , in the year 

I. C. 
Witness, W. C. 

LH. 

Rule of Court. 

G D 1 

vs. >Case. In the Common Pleas, 

Ex'ors. H— C— , dec. } 

On motion of Mr. W , attorney for'the plaintiff, and by con- 

sent of Mr. C , attorney for the defendants. Ordered, That all 

matters in difTerence between the parties, on which this action is 
founded, together with costs of suit, be submitted to the determination, 
final ending, and award of Messrs. I. C. and W. C. That the said 



LAW OF MAGISTRATES. 41 

arbitrators, provided they agree, do make, and return their award, 
under their hands and seals, to the office of the cleric of this Court, 
on or before the first day of October term next ; and in case they 
cannot agree, that then the said arbitrators shall-have leave to choose 
an umpire, who shall make and return his umpirage as aforesaid, on 
or before the day of next ensuing. 

Arhitration Bond, 
Know all men by these presents, that I, A. B. of , in the 

district of , gentleman, am held and firtnly bound to C. D. of 

, in the district of , yeoman, in pounds of good 

and lawful money of the Stite of South-Carolina, to be paid to the 
said C. D., or to his certain attorney, his executors, administrators, 
or assigns; to which payment well and truly to be made, 1 bind 
myself, my heirs, executors, ancT administrators, firmly by these pre- 
sents. Sealed with my seal, and dated the day of , in the 
year 

Condition to stand to the award of tioo arbitrators, in common form. 

The condition of the above obligation is such, that if the above 
bound A. B., his heirs, executors, and administrators, and each and 
every of them, for and on his and their parts and behalfs, do and shall 
well and truly stand to, obey, abide, perform, observe and keep the 
award, order, arbitrament, final end, and determination of A. A., of 
, Esquire, and B. A. of , gentleman, arbitrators indiffer- 

ently named, elected and chosen, as well for and on the part and 
behalf of the above bound A. B., as of the above named C D., to 
arbitrate, award, order, adjudge, and determine, of and concerning all 
• and all manner of action and actions, cause and causes of action and 
actions, suits, bails, bonds, specialties, judgements, executions, 
accounts, debts, dues, sum and sums of money, quarrels, controver- 
sies, trespasses, damages and demands whatsoever, which at &ny time 
or times heretofore have been had, made, moved, brought, commen- 
ced, sued, prosecuted, committed, omitted, done or suffered by or 
between the said parties, so as the sa'id award be made in writing, 
and ready to be delivered to the said parties, on or before the 
day of now next ensuing, [and if the said A. B., his heirs, 

executors or administrators, or any cf them, shall not prefer, or cause 
to be preferred, any bill in Equity against the said A. A., B. A., or 
either of them, for or concerning their award in the premises,] then 
this obligation to be void, otherwise of force. 

If the parties have a mind to make their submission a Rule of 
Court, then this may be added : 



li'v^* 



LAW OF MAGISTRATES. 

And the above bound A. B. doth agree and desire, that this, his 
submission, be made a Rule of the Court of Common Pleas at 
Charleston. 

Condition to stand to the award of three arbitrators, or any two of 
them, and an umpire appointed. 

The condition of this obligation is such, that if the above bound 
A. B., his heirs, executors and administrators, for and on his and 
ttieir parts and behalfs, shall and do well and truly stand to, obey, 
abide, observe, perform, fulfil, and keep the award, order, arbitra- 
ment, final end, and determination of , or any two of them, 
arbitrators indifferently elected, and named, as wellby and on the 
part and behalf of the said A. B., as by and on the part and behalf of 
the above named C. D. to arbitrate, award, order, judge and deter- 
mine, of and concerning alj, and alF manner of action and actions, 
cause and causes of action and actions, suits, bills, bonds, specialties, 
covenants, contracts, promises, accounts, reckonings, sums of money, 
judgements, executions, quarrels, controversies, trespasses, damages, 
and demands whatsoever, at any time heretofore had, made, moved, 
brought, commenced, sued, prosecuted, done, suffered, committed, or 
depending, by or between the said parties, so as the award of the said 
arbitrators, or any of them, be made and set down in writing, under 
their, or any two of their hands and seals, ready to be delivered to 
the said parties in difference, on or before the day of 
now next ensuing, then this obligation to be void, otherwise of. force. 

And if the said arbitrators shall not make such their award, of and 
concerning the premises, within the time limited as aforesaid, then if 
the said A. B., his heirs, executors, and administrators, for and on his 
and their part and behalf, do and shall well and truly stand to, 
observe, perform, fulfil, and ke'ep the award, determination, and umpi- 
rage [if the umpire be named] of , being a person indifferently 
named and chosen between the said parties for umpire ; [if not 
named] of such person as the said arbitrators shall indifferently choose 
for umpire in and concerning the premises, so as the said umpire do 
make and set down his award and umpirage in writing, under his 
hand and seal, ready to be delivered to the said parties in difference, 
on or before the day of now next ensuing ; and if the 
said A. B., his heirs, executors, or administrators, or any of them, 
shall not prefer or cause to be preferred, any bill in equity against 
them the said arbitrators and umpire, or any of them, for or concern- 
ing the award of them the said arbitrators or umpire, in the premi- 
ses, then this obligation to be void, otherwise of force. 



LAW OF MAGISTRATES. 43 

And the above bound A. B, doth agree and desire, that this his 
submission be made a Rule of the Court of Common Pleas at 
Charleston. 

Form of an aicard in full. 

To all to whom these presents shall come: we, A. B., of , 

and C.-D., of , do send greeting. 

Whereas there are several accounts depending, and divers contro- 
versies have arisen between , of , yeoman, of the one 
part, and , of , yeoman, of the other part; and whereas, 
for the putting an end to the said differences, they the said and 
, by their several bonds or obligations, bearing date last 
past, are reciprocally become bdund each to the other in the penal 
sum of , to stand to, abide, perform, and keep the award, order, 
and final determination of us the said , so as the said award be 
made in writing, and ready to be delive red to the parties in difference 
on or before next ensuing, as by the said obligations and con- 
ditions thereof may appear: Now know ye, that we the said arbitra- 
tors, whose names are hereunto subscribed, and seals affixed, having 
taken upon us the burden of the said award, and having fully exam- 
ined and duly considered the proofs and allegations of both the said 
parties, do make and publish this our award, between the said parties, 
in manner following; that is to say, we do award and order, that all 
actions, suits, quarrels, and controversies whatsoever, had, moved, 
arisen, and depending between the said parties, in law or Equity, for 
any manner of cause whatsoever, touching the said premises, to the 
day^f the date hereof, shall cease and be no further prosecuted ; and 
that each of the said parties shall pay and bear his own costs and 
charges, in anywise relating to or concerning the premises. And we 
do also award and order, that the said shall deliver-or cause to 
be delivered to the said , at within the space of , 
&c. And further, we do hereby award and order, that the said 

shall, on or before , pay, or cause to be paid unto the said 

, the sum of . We do also award and order, &c., and 

lastly, we do award and order, that the said and , on payment 

of the said sum of , shall in due form of law, execute each to 

the other of them, or to the other's use, general releases, sufficient in 
the law for the releasing of each to the other of them, his heirs, execu. 
tors, and administrators, of all actions, suits, arrests, quarrels, contro- 
versies, and demands whatsoever, touching or concerning the premises 
aforesaid, or any matter or thing thereto relating, from the beginning 
of the world until the day of last past (viz., the day of 



44 LAW OF MAGISTRATES. 

the date of the arbitration bonds.) In witness whereof, we have 
hereunto set our hands and seals, the day of in the year 
Witness hereof, 

A. B. 

CD. 

Form of an Umpirage. 

(Recite the arbitration bonds as before.) Now know ye, that I 
, umpire, indifferently chosen by , having deliberately 

heard and understood the griefs, allegations and proofs of both the 
said parties, and willing (as much as in me lieth) to set the said par- 
ties at unity and good accord, do by these presents arbitrate, award, 
order, decree, and judge, as followeth, this is to say, dec. 



A R M S, F I R E . 

1st. As TO White Persons. 

2nd. As TO Slaves and Free Persons of Color. 

3d. Precedents. 

1st. As to White Persons. 
Firing in If any person shall shoot oflf any gun or pistol in the night time, 

niglit time. -^ ' j o r » ' 

after dark, and before day-light, without necessity, every such person 
shall forfeit the sum of forty shillings for each gun so fired, as afore- 
said, to be recovered by warrant from any one justice of the peace 
of the county where the offence is committed, according to the direc- 
tion of the act for the trial of small and mean causes. 7 S. L. , 412. 
. All arms and equipments, required by law, and horses used in the 
Exempt from pe'rformance of military duty, are exempt from seizure, distress and 
execution, and the person seizing the same is liable to a penalty of 
fifty dollars, recoverable by indictment. A. A., 1841, p. 210. 

2n(Z. As to Slaves and Free Persons of color. 

By the Act of 1819, 6th S. L., 539, it is enacted that it shall not 

be lawful for any slave, except in the company and presence of some 

May not white person, to carry or make use of any fire-arms or other offensive 

wthout weapon, unless such slave shall have a ticket or license in writing 

from his owner or owners, or be employed to hunt and kill game, 

mischievous birds or beasts of prey, within the limits of his master's 

plantation, or shall be a watchman in and over his owner's fields or 

plantation. 



LAW OF MAGISTRATES. 45 

A nd in case any white person shall find any slave using or carrying apy 
gun or other offensive weapon, contrary to the intent and meaning of 
this act, he, she or they may lawfully seize such gun or other offensive ^'='2"''^' 
weapon, and convert the same to his, her or their own use; but before 
the property of such goods shall be vested in the person who shall 
seize the same, such person shall, within forty-eight hours after such 
seizure, go before the next justice, and shall make oath of the manner .^^^^ 
of taking; and if such justice of the peace, after such oath shall be p''^'=®^^'°8s. 
made, or if upon any other examination, he shall be satisfied that the 
said fire-arms or other offensive weapons shall have been seized 
according to the directions, and agreeable to the true intent and meari- 
ing of this act, the said justice shall, by ceilificate under his hand and „ .^ 

° ' -• ' -^ _ Certificate of 

seal, declare the forfeiture, and that the property is lawfully vested injustice. 

the person who seized the same; provided that no such certificate shall 

be granted until the owner or owners of such fire-arms, or dther ofl^en- Notice to 

° . _ owuer, &c. 

sive weapon, so seized as aforesaid, or the overseer or overseers, who 
shall or may have charge of such slave or slaves, from whom such 
fire-arms or other offensive weapon shall be taken or seized, shall be 
duly summoned to show cause (if any such they have,) why the same 
should not be condemned as forfeited, nor until forty-eight hours after 
the service of such summons, and oath made of the service thereof 
before the said justice. 

By Act of 1843, page 258, the time for going before the magis- 
trate is extended to ten days ; also, the notice to the Qwner; and 
the weapon seized is liable to forfeiture to the use of the regiment. 

No free negro, or other free person of color, shall carry any fire- Free negroes 
arms or other military or dangerous Aveapon abroad, except wiih a 
written ticket from his or their guardian, under pain of forfeiting the 
same, and being fined or whipped, at the discretion of any magistrate 
and three freeholders, before whom he or they may be convicted 
thereof. 1835, 7th S. L., 474. 

Sd. Precedents. 

1st. Form of summons for firing guns in the night time. 

SoTITH-CarOLINA, > rp 1 c ^ n i i i 

A- ..• f \ 10 any lawful Constable. 

Complaint having been made to me that A. B. did, on the night of 
, the day of , after dark and before day-light, 

without necessity shoot off a gun, whereby he has forfeited to the 
Commissioners of the Poor for district, the sum of forty shil- 

lings. These are, therefore, to authorize and require you to summon 



46 LAW OF MAGISTRATES. 

the said A. B., to be and appear before me afe , on 

next, the day of , at o'clock, to answer the said 

charge. Given under my hand and seal, this day of A. D. 

C. D. [l. s.] 
Magistrate. 

2nd. Affidavit in case of toeapon taken from a slave. 

State of South-Cakolina, } 
District. ^ 

Personally appeared before me, A. B., who being duly sworn, 
deposeth, and says that within ten days last past, he seized and took 
from D., slave of C. D , a (here describe the gun or weapon;) that 
said slave was not in the company of any white person, had no ticket 
to use said gun, nor was he employed as a watchman, or to hunt or 
kill game within his master's plantation ; and deponent claims 
forfeiture of said weapon^ according to act in such cases made and 
provided. 

Sworn to before me this day of 

A. D. C. D. 

Magistrate. 

Signed, • A. B. 

2d. Certificate of Forfeiture. 

State of South-Carolina, 
District. 

Whereas A. D. hath made oath before me, according to law, that 
he did on the day of , seize and take from D., slave of 

C. D, a (here describe the weapon) who was using and carrying the 
same contrary to law. And whereas, ten days notice has been given 
to the said C. D., to shew cause, (if any,) why the same, should not 
be condemned as forfeited, and no satisfactory cause has been shewn. 
Now, therefore, I., E. F., magistrate, hereby certify and declare the 
said weapon to be forfeited and lawfully condemned, to be sold within 
ten days. Given under my hand and seal this day of 

A. D., 18 

E. F. [l. s.] 

Magistrate. 



LAW OF MAGISTRATES. 47 



ARREST. 

1st. What is an arhest. 

2nd. Who may or may not be arkested. 

3d. For what causes of stjspiciox an arrest may be. 

4|ltl. By WH03I AN ARREST SHALL BE MADE. 

5th. The manner op an arrest. 

6th. What is to be done after the arrest. 

1st. What is an Arrest. 
An arrest signifies the restraint of a man's person, depriving him 
of his own free will and liberty, and binding him to become obedient 
to the law; and it may be called the beginning of imprisonment. 
Lamb. 93. 

2d. Who may or may riot be Arrested. 

No person shall be freed from arrests for treason, felony or breach 
of the peace. 4 Inst. 24, 25. 

The Senators and Representatives of the United States shall in all privileged 
cases, except treason, felony, and breach of the peace, be privileged P^f^o"^* 
from arrest, during their attendance at the session of their respective 
houses, and in going to and returning from the same. Const, of the 
U. S., Sec. 6, Art. 1. 

The privileges of the members of both Houses shall not be extert- 
ded so as to protect any member who shall be charged with treason, 
felony, or breach of the peace. Const. ofS. C, Sec. 14. Art. 1. 

No civil officer shafl execute any process (unless for treason, 
felony, or breach of the peace) on any person, at any muster, or other At muster, 
time when such person shall be obliged to bear arms, nor in going to 
or returning from any muster or place of rendezvous, or within twenty, 
four hours after such person shall be discharged from appearing in the 
regiment, company or troop, to which he shall belong, under the pen- 
alty of £5, and the service of such process shall be void. Militia 
Act, 10th May, 1794. 

In cases of corporations, the process is by a distringas, for they 
cannot be arrested. 3 Salk. 46. 

A warrant executed against any person whatsoever on the Lord's on Lord's 
Day, is void, and the .persons serving the same shall suffer damages '^^^^ 
as if they had done the same without warrant; except in cases of 
treason, felony or breach of the peace. A. A., No. 329. 



48 



Common 
fame. 



Circum- 
stances. 



Behaviour. 



Bad 
Company. 



Idling 



OflBcers. 



Private 
person. 



LAW OF MAGISTRATES. 

2d. For what causes of suspicion an arrest may he. 

By the statute of 34 Ed. 3, c. 1., power is given to the justices of 
the peace, to arrest all those whom they find by indictment, or by 
suspicion, and to put them in prison. And the causes of suspicion, 
which are generally agreed to justify the arrest of an innocent person 
for felony, are as follow: 

The common fame of the country, though it seems that it ougfit to 
appear upon evidence, in an action brought for such arrest, that such 
fame had some probable ground.- 2 Hawk. 76. 

The being found in such circumstances as induce a strong presump- 
tion of guilt, as coming out of a house wherein murder hath been 
committed, with a bloody knife in one's hand; or being found in pos- 
session of any part of goods stolen, without being able to give a 
probable account of coming honestly by them. 2 Haw. 76. 

The behaving one's self in such a manner as betrays a conscious- 
ness of guilt, as where a man accused of felony, on hearing that a 
warrant is taken out against him, doth abscond. 2 Haw-. 76. 

But the party who flies from an arrest for a capital offence, is not 
thereby guilty of a capital offence. 2 Haw, 122. 

The being found in company with one known to be an offender at 
the time of the offence, or generally at other times keeping company 
with persons of scandalous reputation. 2 Haw. 76. 2 Inst. 52. 

The living an idle, vagrant, and disorderly life, without having any 
visible means to support it. 2 Hawk. 76. 
*The being pursued by hue and cry. 2 Hawk. 76. 

For if a felony is done, and one is pi'rsued upon hue and cry, that 
is not of ill fame, suspicious, unknown no^ indicted, he may be 
attached and imprisoned by the law of the land. 2 Inst. 52.* 

But generally no such cause of suspicion as any of the abovemen- 
tioned will justify an arrest, where in truth no such crime hath been . 
committed, unless it be in the case of hue and cry. 2 Haw, 76. 

4ih. By ichom the arrest shall he made. 

In criminal cages, a person may be apprehended and restrained of 
his liberty, and not only by process out of some court, or warrant from 
a magistrate, but frequently by a constable, watchman, or private 
person, without any warrant or precept. 

Thus, all persons who are present when a felony is committed, or a 
dangerous wound given, are bound to apprehend the offender, on pain 
of being fined and imprisoned for their neglect. 2 Haw. 74. 

Also, every private person is bound to assist an officer demanding 



LAW OF MAGISTRATES. 49 

his help, for the taking of a felon, or the suppressing of an affray. 2 
Haw. 75. 

Also, a watchman may arrest a night walker, without any warrant 
from a magistrate. 2 Inst. 52. 

In like manner, a constable may ex officio, arrest a breaker of the 
peace in his view, and keep him in his house, or in the stocks, till he 
can bring him before a justice. 1 H. H., 587. 

Or any person whatsoever, if any affray be made to the breach of 
the peace, may without any warrant from a magistrate, restrain any 
of the offenders, to the end the peace may be kept; but after the affray 
is ended, they cannot be arrested without an express warrant. 2 
Inst. 52. 

So much concerning an arrest without a warrant; next follows, 
arresting with such warrant. 

The warrant is ordinarily directed to the sheriffor constable, and officer 

., • T 1 1 11-1 r- 1 • • coiniielled. 

they are indictable and subject thereupon to a tine and imprisonment, 
if they neglect or refuse it. 1 H. H., 581. 

If it be directed to the sheriflj he may command his under sherifi', By deputy. 
or other sworn or known officer, to serve it, without writing any pre- 
cept; but if he will command another man, that is no such officer, to 
serye it, he must give him a written precept, otherwise false impri- 
sonment will lie. Lamb., 89. 

But every other person to whom it is directed, must personally 
execute it; yet it seems that any one may lawfully assist him. 2 
Haw., 86. 

If a warrant be generally directed to all constables, no one can 
execute it out of his own precinct; for in such case it shall be taken 
respectively to each of them within their several districts, and not to 
one of them to execute it within the district of another; but if it be 
directed to a particular constable, (Mr. Hawkins says to a particular 
constable by name,) he may execute it any where M'iihin the jurisdic- 
tion of the justice, but is not compellable to execute it out of his own 
constablewick. Lord Raym., 546. 1 H. H., 581. 2 H. H., 110. 
2 Haw., 86. 

The justice that issues the warrant may direct it to a private person private 
if he pleaseth, and it is good; but he is not compellable to execute it, compelled.' 
unless he be a proper officer. 1 H. H., 581. 

But by the justice's oath, the warrant ought not to be directed to the 
party, but to some indifferent person, to execute it. 

If a warrant is directed to two or more jointly, yet any one of them 
alone may execute it. Dalt., c. 169. 
7 



50 LAW OF MAGISTRATES. 

By City The Citv Guard of Charleston have the right to arrest persons com- 

Guard. . . ~. ^ -i r ^ 

nutting affrays or breaches of the peace, without any warrant. City 

Council vs. Payne, 2 N. & Mc., 475. 

Private persons, without a warrant, may arrest in this State a party 
Felons from who has Committed a fefony in another State, and prima facie evi- 
State. dence of the fact, as the proclamation of the governor's, or proof of 

true bill found, is sufficient to warrant the arrest. State vs. Andrews, 

1 Hill, 327. 

5i/t. The manner of an Arrest. 

With speed. ^\\q officer to whom a M^arrant is directed and delivered, ought, 
with all speed and secresy, to find out the party, and then to execute 
the warrant. Dalt. c. 169. 

It is certainly an offence of a very high nature to oppose one who 
lawfully endeavors to arrest another for treason or felony: and it seems 
that the person who so opposes an arrest for treason, whereof he knows 
the party to have been guilty, is thereby guilty of the treason; and 
that he who so opposes an arrest for felony, is an accessary to the 
felony. 2 Haw. 121. 

Nieht ^^^ arrest in the night is good, both at the suit of the State, and of 

the subject; else the party may escape. J) Co. 66. 

(•Constables and others may, on having the warrant endorsed by a 

In a different justice in another district or county, into which an oflTender shall have 

district. •' . 

escaped, arrest an ofl^ender in such other district or county, and carry 
him before the justice who endorsed the warrant, or some other justice 
or justices of such other district or county, if the ofl^ence is bailable, 
to find bail; or else shall carry him back again before a justice in the 
district or county from whence the warrant did first issue. 
Posse Any justice, or the sheriff, may take of the district or county any 

Oomitatus. ,111,11.1 , . . . 

number that he shall think meet, to pursue, arrest and imprison trai- 
tors, murderers, robbers and other felons; or such as do break, or go 
about to break or disturb the peace; and every man being required, 
ought to assist and aid them, on pain of fine and imprisonment. Dalt. 
c. 171. 

But it is not justifiable for a justice, sheriff, or other officer to assem- 
ble the posse comilalus, or raise a power or assembly of people, upon 
their own heads, without just cause. Dalt., c. 171. 

And in such case it is referred to the discretion of the justice, sherifT 
or other officer, what number they will have to attend on them, and 
how, and after what manner they shall be armed, or otherwise fur- 
nished. Dalt., c. 171 



LAW OF MAGISTRATES. 51 

As to the case of breaking open doors, in order to apprehend offen- Breaking 
ders, it is to be observed, that the law doth never allow of such °°'^^* 
extremities, but in case of necessity; and therefore, that no one can 
justify the breaking open another's door, to make an arrest, unless he 
first signify to those in the house the cause of his coming, and request 
them to give him admittance. 2 Haw. 86. 

But where a person authorized to arrest another, who is sheltered 
in a house, is denied quietly to enter into it, in order to take him, it 
seems generally to be agreed, that he may justify the breaking open 
the doors, in the following instances : 

Upon a warrant grounded on an indictment for any crime whatso- ^pon 
ever, or upon a warrant from the General Court of Sessions, to com- ^''"^°'* 
pel a man to find sureties for the peace or good behaviour. 

Where one is known to have committed a treason or felony, or to 
have given another a dangerous wound, is pursued either with or On pursuit, 
without a warrant, by a constable or private person, and upon a war- 
rant, for probable cause of suspicion of felony, the person to whom 
such warrant is directed, may break open doors to take the person 
suspected, if upon demand he will not surrender himself, as well as 
if there had been an express and positive charge against him. 

And as he may break open such person's own house, so much more 
may he break open the house of another to take him; for so the 
sheriff may do upon a civil process: but then he must, at his peril, 
see that the felon be there; for if the felon be not there, he is a tres- 
passer to the stranger whose house it is. 2 H. H., 117. 

But it seems that he that arrests as a private man barely upon sus- 
picion of felony, cannot justify the breaking open of doors to arrest 
the party suspected, but he doth it at his peril; that is, if in truth he 
be a felon, then it is justifiable; but if he be innocent, but upon a rea- 
sonable cause suspected, it is not justifiable. 1 H. H., 82. 

But a constable in such case may justify, and the reason of the 
difference is this; because, that in the former case, it is but a thing 
permitted to private persons to arrest for suspicion, and they are noj; 
punishable if they omit it, and therefore they cannot jareak open doors; 
but in case of a constable, he is punishable if he omit it upon com- 
plaint. 2 H. H., 92. 

Upon a warrant from a justice of the peace, to find sureties for the 
peace or good behavior. 2 Haw., 86. 1 H. H., 582. 2 H. H., 117. 

And in general, Mr. Dalton says, an officer upon any warrant from 
a justice, either for the peace or good behavior, or in any case where 
the State is party, may by force break open a man's house to arrest the 
oflTender. Dalt., c. 169. 



52 



LAW OF MAGISTRATES. 



Oil search. 



Levying 
I'oiCeituie. 



Oil afiray. 



Disorderly 
house. 



Escape. 



Not on 
general 
warrant. 



Not in civil 
case. 



After entry. 



On a warrant to search for stolen goods, the doors may be broken 
open, if the goods are there; and if they are not there, the constable 
seems indemnified; but he that made the suggestion, is punishable. 
2 H. H., 151. 

On the warrant of a justice of the peace for the levying of a forfei- 
ture, in execution of a judgment, or conviction for it, grounded on 
any Act of Assembly, which gives the whole or any part of such for- 
feiture to the State. 2 Haw., 86. 

Where an affray is made in a house, in the view or hearing of the 
constable, he may break open the doors to take them. 1 Haw., 137. 
2 Haw., 87. 

If there be disorderly drinking or noise in a house, at any unsea- 
sonable time of night, especially in inns, taverns, or ale-houses, the 
constable, or his watch, demanding entrance, and being refused, may 
break open the doors to see and suppress the disorder. 2 H. H., 95. 

Wherever a person is lawfully arrested for any cause, and after- 
wards escapes, and shelters himself in a house. 2 Haw., 87. 

But upon a general warrant, without expressing any felony or trea- 
son, or surety of the peace, the officer cannot break open a door. 1 
H. H., .^84. 

In a civil suit, the officer cannot justify the breaking open an out- 
ward door or window, in order to execute process; if he doth, he is a 
trespasser: but if he findeth the outward door open and enterefh that 
way; or if the door be open to him from within, and he entereth, he 
may break open the inward doors, if he findeth that necessary, in 
order to execute his process. Fost., 319. 

For a man's house is his castle, for safety and repose to himself and 
family; but if a stranger, who is not of the family, upon a pursuit, 
taketh refuge in the house of another, this rule doth not extend to him, 
it is not his castle, he cannot claim the benefit of sanctuary therein. 
Fost., 320. 

And it is always to be remembered that this rule must be confined 
to the case of arrest upon process in civil suits only; for where a 
felony hath been committed, or a dangerous wound given, or even 
where a minister of justice cometh armed with process founded on a 
breach of the peace, the party's house is no sanctuary for him : in 
these cases, the justice which is due to the public, must supersede 
every pretence of private inconvenience. lb. 

Finally, in all these cases, if an officer, to serve any warr.ant, 
enters into a house, the doors being open, and then the doors are 
locked upon him, he may break them open in order to regain his 
liberty. 2 Haw., 87. 



LAW OF MAGISTRATES. 53 

if there be a warrant against a person, for a trespass or breach of 
the peace, and he flies and will not yield to the arrest, or being taken 
makes his escape, if the officer kill him, it is murder. 2 H. H., 117. When an 

But if such person, either upon the attempt to arrest, or after the ° 
arrest, assault the officer, to the intent to make his escape from him, 
and the officer standing upon his guard kills him, this is no felony; for 
he is not bound to go back to the wall, as in common cases of se 
defendo, for the law is his protection. 2 H. H., 118. 

But where a warrant issueth against a person for felony, and either 
before arrest, or after, he flies and defends himself with stones or 
weapons, so that the officer must give over his pursuit or otherwise 
cannot take him, without killing him, if he kill him it is no felony : 
and the same law is, for a constable that doth it by virtue of his office, 
or on hue and cry. 2 H. H., 118. 

But then there must be these cautions: (1.) He must be a lawful 
officer, or there must be a lawful warrant. (2.) The party ought to 
have notice of the reason of the pursuit, namely, because a warrant 
is against him. (3.) It must be a case of necessity, and that no such 
a necessity as in the former case, where an assault is mads upon the 
officer; but this is the necessity, namely, that he cannot otherwise be 
taken. 2 H. H., 119. 

But though a private person may arrest a felon, and if he fly so as 
he cannot be taken without he be killed, it is excusable in this case 
for the necessity; yet it is at his peril that the party be a felon; for if 
he be innocent of the felony, the killing (at least before the arrest) 
seems at least manslaughter; for an innocent person is not bound to 
take notice of a private person's suspicion. 2 H. H., 119. 

A person sworn and commonly known, and acting within his own 
precinct, need not show his warrant; but he ought to acquaint the 
party with the substance of it. 2 Haw., 85. 

But if he acts out of his precinct, or it is not sworn and commonly ^yjjen 50,^^ 
known, he must show his warrant if demanded. 2 Haw., 85, 86. ^^*/j°^j 
Otherwise the party may make resistance, and needs not to obey it. 
Dalt., c. 169. 

But if the constable has no warrant, but doth it by virtue of his 
office, as a constable, it is sufficient to notify that he is a constable, or 
that he arrests in the State's name. 1 H. H., 583. 

If the constable come unto the party, and require him to go before 
the justice, this is no arrest or imprisonment. Dalt., c. 170. 

For bare words will not make an arrest, without laying hold on the 
person, or otherwise confining him; but if an officer comes into a 



54 LAW OF MAGISTRATES. 

room, and tells the party he arrests him, and locks the door, this ia 
an arrest; for he is in custody of the officer. Salk., 79. 2 Haw., 
129. Cases in the time of Lord Hardwicke, 301. 
Second It hath been holden, that if a constable, after he hath arrested the 

arrest. ^ ^ r- rr^ i • i i • 

party by lorce oi a warrant, sutler him to go at large, upon his promise 
to come again and find sureties, he cannot afterwards arrest him by 
force of the same warratit; however, if the party return, and put him- 
self again under the custody of the constable, it seems that it may be 
probably argued, that the constable may lawfully detain him, and 
bring him before the justice, in pursuance of such warrant; but in 
this the law doth not seem to be clearly settled. 2 Haw., 81. 

But if the party arrested do escape, the officer upon fresh suit may 
take him again and again, so often as he escapeth, although he were 
out of view, or that he shall fly into another town or county, or dis- 
trict. Dalt., c. 169. 

Glh. What is to be done after ih,e Arrest. 
When a private person hath arrested a felon, or one suspected of 
felony, he may, with as much speed as he conveniently can, deliver 
Brought him to a constable, to carry to a justice of the peace, or he may carry 

beforejustice ^ J J f » J J 

him there himself. 1 H. H., 589. 

If the constable, or his watch, hath arrested affrayers, or persons 
drinking in an ale-house, disorderly, at an unseasonable time of night, 

Imprisoned, he may put the persons in the stocks, or in a prison, if there be one in 
the place, till the heat of their passion or intemperance is over, though 
he deliver them afterwards, or till he can bring them before a justice. 
2 H. H., 95. 

If the arrest is by virtue of a warrant, when the officer hath made 
the arrest, he is forthwith to bring the party, according to the direction 

warrant. ° of the Warrant: if it be to bring the party before the justice who 
granted the warrant specially, then the officer is bound to brinf him 
before the same justice; but if the warrant be to bring him before any 
justice of the county or district, then it is in the election of the officer 
to bring him before what justice he thinks fit, and not in the election 
of the prisoner. 1 H. H., 582. 2 H. H., 112. 

Detained if But if the time be unseasonable, as in or near the night, whereby 
he cannot attend the justice, or if there be danger of a present rescue, 
or if the party be sick, he may secure him in the stocks, or in an 
house, till the next day, or such time as it may be reasonable to bring 
him. 2 H. H., 120. 

And when he hath brought him to the justice, yet he is in law still 



in the night. 



LAW OF MAGISTRATES. 55 

in his custody; till the justice discharge, or bail, or commit him. 2 . 
H. H., 120. 

But it is said, the constable is not obliged to return the warrant May keep 

. ^ , . ..^. . 1 ii'-u warrant 

itself, but may keep it for his own justification, in case he should be 
questioned for what he had done; but only to return what he has done 
upon it. Lord Raym., 1196. 



ARSON. 

IsL What is. 

Arson, at common law, is the malicious and voluntary burning the 
house of another, by night or by day. By the term house, is '"eant -ggj^j^j^jj 
not only the dwelling, but all out-houses, which are parcel thereof, 
though not adjoining thereto, or under the same roof. A house to be 
a parcel of the dwelling-house, must be somehow connected or con- 
tributing to it, such as a kitchen, smoke-house, or such other as is 
usually considered as a necessry appendage of a dwelling-house. 

It cannot embrace a store, blacksmith's shop, or any other building 
separated from it, and appropriated to another and distinct use, unless 
such store is under the same roof, or some of the family sleep in it. 
State vs. Ginns, 1 N. & Mc, 5H3. ' ^^U,^ 

2d. Of the Burning. 
The burning necessary to constitute arson must be an actual burn- 
ing of the whole or some part of the house. Neither a bare intention, 
nor even an actual attempt to burn a house, by putting fire into it, burning, 
will amount to the offence if no part of it bo burned; but it is not 
necessary that any part of the house should be wholly consumed, or 
that the fire should have any continuance, and the offence will be 
complete, though the fire be put put, or go out of itself. Russell on 
Crimes, 2, 486. 

Zd. The burning must he wilful and malicious, otherwise it is only a 

trespass. 
No negligence or mischance will amount to such burning, But the 
wilful or malicious burning need not correspond to precise intent of 
the party. If A. have a malicious intent to burn the house of B., and 
in setting fire to it, burn the house of C, though the house of B. 
escape, this will be held in law to be the wilful and malicious burning 
of the house of C. And such malicious and wilful burning of the 



56 LAW OF MAGISTRATES. 

house of another, may be by the means of setting fire to the party's 
own house, and this, though it should appear that the primary inten- 
tion of the party was only to burn his own house. 

4/7i. It must be the Jiouse of another. 
And the burning a party's own house, if no other be burned thereby, 
is not arson, but if near to other houses, or in a crowded city, it is a 
great misdemeanor. But if the house be tVat of another, and the 
party have a mere possession, without an interest therein, the burning 
such house is arson. Russ., 2, 488. 

5th. Ptinishment. 
The punishment of arson is death, without benefit of clergy, where- 
fore a magistrate may not admit to bail, the party charged therewith. 



Attempt to 
strike. 



Words not. 



Act explain- 
ed by words, 



Indecent 
•liberties. 



ASSAULT AND BATTERY. 

1st, What is an Assault. 

An assault is an attempt or offer with force and violence to do a 
corporal hurt to another, as by striking at another, holding up the fist 
in a threatening manner within striking distance, throwing at with 
intent to strike, presenting a gun within shooting distance, or any 
other similar act. No words whatsoever, be they ever so provoking, 
will amount to an assault. And the words used at the time may so 
explain the intention of the party as to qualify his act and prevent it 
from being deemed an assault, as where A. laid his hand upon his 
sword and said, " If it were not assize time I would not take such 
language from you." It was holden not to be an assault, on the 
ground that he did not design to do the other party any corporal hurt 
at that time. Any offer or attempt to do violence to the person of 
another, in a rude, angry, or resentful manner, is an assault. There- 
fore, where a party had a negro in custody, and tied to his person by 
a rope, and another cut the rope and carry off the negro, it was held 
to be an assault. State vs. Davis & Pardee, 1 Hill, 46. 

The taking indecent liberties with a female, without her consent, 
though she do not resist, is an assault; so also, the exposing another to 
the inclemency of the weather. Russell on Crimes, 1, 605. 

2d. What is a Battery. 
A battery is more than an attempt to do a corporal hurt to another, 



LAW OF MAGISTRATES. 57 

but any injury whatsoever, be it ever so small, being actually done to 
the person of a man in an angry, revengeful, rude, or insolent man- 
ner, such as spitting in his face, or any touching him in anger, or 
violently jostling him out of the way, is a battery. For every man's 
person is sacred, and the law prohibits any meddling therewith 
in the slightest manner. Russell 1, 605. 

The injury need not be effected directly by the hand of the party. 
Thus, there may be an assault by encouraging a dog to bite, by riding Setting on a 
over a person with a horse, or by wilfully or violently driving a cart 
against the carriage of another, thereby causing bodily injury to the 
persons travelling in it. 

And one who incites others to commit an assault and battery, is inciting 
himself guilty of the offence, if it be committed. State vs. Lymburn, ^"°' ^'^' 
2 Bre. R., 397. 

Neither is it necessary that the assault should be immediate, as 
where a defendant throw a lighted squib into a market place, which Throwing a 
being tossed from hand to |iand, at last hit the plaintiff in the face, ^''"' ' 
and put out his eye — this was adjudged an assault and battery. 
Whether an act shall amount to a battery, must, in every case, be 
collected from the intention. Thus, if one person lay hands on another 
to prevent a breach of the peace, or to separate him from another imemion. 
with whom he is fighting, it is not a battery; or, if two consent to 
play at cudgels and one happen to hurt the other, it would not amount 
to a battery. 

2d. In what cases Assault and Battery may be justified. 

No words will justify an assault, nor will an assault, or even a blow, v\rordBnot. 
justify an enormous battery. State vs. Wood, 1 Bay, 351, and State 
vs. Quin, 2 Tr. Con., 694. Yet, if the defence be proportionate to Seiflefenee. 
the aggression, a party may justify in defence of his person, wife, 
servant, master, parent or child. 

A man may use force to put another out of his house, if he remain Entry of 
after being desired to leave. Yet, he must use only such force as is ^""^^^ 
necessary to put him out, and he may not inflict a violent battery. 
State vs. Lazarus, 1 M'C, 34. 

In any trespass or breach of a close, without violence, a party Request to 
cannot justify an assault without a request to depart; but if the entry ^^'"^' 
be with violence, it may be opposed at once, with violence. Green 
vs. Goddard, 2 Salk, 641. 

4th. Punishment; 

The party injured may recover damages for an assault and battery, Damages. 
8 



58 LAW OF MAGISTRATES. 

in a civil action, which must be brought within twelve months, and 
Prosecution, pursue the defendant in a prosecution at the suit of tlie State. In the 
latter case, the punishment of a white person is by fine and imprison- 
ment, and of a slave, by imprisonment, whipping, or confinement on 
the tread mill. 

By the Act of Ann, c. 14, 2d S. L. 569, if the assault and battery 
Forfeiture, be for money won at gaming, the party convicted thereof shall forfeit 
all his goods, chattels, and personal estate, and be imprisoned for the 
term of two years. 

5/7t. Requisite of Affidavit, form of Warrant, S^c. 
The affidavit should state concisely the time, place and manner of 
the assault and battery, the christian and surnames of the parties. 
Must shew that it was done without sufficient cause or provocation, 
and if the assault and battery be aggravated, the particulars thereof 
should be stated, otherwise the party might be admitted to light bail. 

Form of Warrant. 

State of South-Caeolina. ) 
District. ^ 

By A. B., magistrate, in and for the said State. To any lawful 
constable. 

Whereas complaint on oath has been me by B. C, that 

C. D. did on the day of at , in the district 

and State aforesaid, without just cause or provocation, assault and 
strike him (or, if violent, did violently beat him;) these are, therefore, 
to command you forthwith to apprehend the said C. D., and bring him 
before me, to be dealt with according to law. 

Given under my hand and seal, this day of 

A. D. 

A. B. [l. s.] 

Magistrate. 



ASSEMBLIES. 

l^t. Religious Assemblies. 
2d. Unlawful Assemblies. 

1*^ Of Religious Assemblies. 
A religious assembly is a congregation of persons of any sect, creed 
or persuasion, whatsoever, for the worshipof Almighty God; and such 



LAW OF MAGISTRATES. 59 

assemblies are under the protection of the law. The offences which 

may be committed against such, are first, the disturbance of the same Disturbance 

during worship, which is an indictable offence, and punishable by fine 

and imprisonment. Bell ads. Graham, 1 N. & Mc, 278. 

Secondly. The retailing of spirituous liquors within one mile of Retailing 
any place, set apart for religious worship, during the time of worship 
at such place;' for which offence, the party guilty thereof, is liable to 
indictment, and upon conviction, to a penalty of fifty dollars. Act of 
1809, 5th S. L., 569. 

The assembling of slaves in the day time, for religious worship, is of slaves. 
not contrary to law, if a white person be present; and the disturbing 
such an assembly, is an indictable offence; nor have persons invested 
with the authority of a patrol, the right to disperse them; but to war- 
rant such an assembly in the night time, there must be a majority of 
white persons present, and it must not be extended beyond nine 
o'clock. Act of 1803, and Bell ads. Graham, 1 N. & Mc, 278. 

2d. Unlmiiful Assemblies. 

\st. White Persons. — An unlawful assembly generally, is the meet- 
ing of three or more persons to do an unlawful act, (as the pulling down 
an enclosure) and part without doing it or making any motion towards it. Meeting for 
An assembly of a man's friends, for the defence of his person, against act. 
those who threaten to beat him if he go to such a place, &c., is unlawful, 
for he should provide for his safety by dismanding sureties of the peace 
from those who threaten him, and not make use of such violent methods, of man's 
which must be attended Avith danger of tumults and disorders to the "*" ^' 
disturbance of the public peace. But an assembly of a man's friends 
in his own house, for the defence of the possession of it against those j^^tifinhia 
who threaten to make an unlawful entry, or for the defence of his """^ ''°"^®* 
person against such as threaten to beat him in his own house, is indulged 
by law; for a man's house is looked upon as his castle. He is not, 
however, to arm himself, and assemble his friends in defence of his 
close; 1st Russell, 255. The punishment of an unlawful assembly is 
by fine and imprisonment. 

2ncZ. Of Slaves. — All assemblies and congregations of slaves, free 
negroes, mulattoes and mestizoes, whether composed of all or any of the 
above description of persons, or of all or any of the above described per- 
sons, and a proportion of white persons, assembled or met together for 
the purpose of mental instruction, in a confined or secret place of meet- 
ing, barred, bolted or locked, so as to prevent the free ingress and egress 
to and from the same, shall be, and the same is hereby declared to be an 



60 LAW OF MAGISTRATES. 

unlawful meeting; and the magistrates, sheriffs, militia officers, and 
officers of the patrol, being commissioned, are hereby directed, requi- 
red, and empowered to enter into such confined places, where such 
unlawful assemblies ai-e convened, and, for that purpose, to break 
» doors, gates, or windows, if resisted, and disperse such slaves, negroes, 

mulattoes, or mestizoes, as may be then and there found unlawfully 
met together and convened; and such magistrates, sheriffs, constables, 
militia officers, and officers of the patrol, are hereby empowered and 
required to call unto their assistance, such force and assistance from 
the neighborhood, as he or they may judge necessary for the dispersing 
of such unlawful assemblage of persons of color as aforesaid; and the 
officers and persons so dispersing such unlawful assemblage of persons, 
shall, if they think proper, impose such corporal punishment, not 
exceeding twenty lashes, upon such free negroes, mulattoes, slaves, 
and mestizoes, as they may judge necessary for deterring them from 
the like unlawful assemblage in future; and the officers dispersing 
such unlawful assemblies, shall have power to take into custody, and 
deliver to the nearest constable, all or any of such slave or slaves, 
free negroes or mulattoes, as may be found transgressing this law; 
and the said constable is hereby required to receive such persons, and 
convey them to the nearest magistrate, who shall inflict such punish- 
ment, not exceeding twenty lashes, which any such magistrate may 
order and direct. 

Every officer or other person, so entering into and dispersing ^uch 

slaves, free negroes, mulattoes and mestizoes, from such closed or 

confined places of meeting, or from any open meeting, after nine 

o'clock in the evening, shall be, and he is declared under the protec- 

entering and *^^" °^ ^^^ ^^^"^j ^""^ ^''^^ ^''<^'^ ^^^ ^^^^^ ^^ \b.\v, prosecutions and indict- 

suchmelft- ments, for or on account of such acts as may bo done and performed 

ulfder't'he^ by him or them, in pursuance of the letter and meaning of this act; 

fhe'iaw?" "'^ ^"^ all and every person or persons, sueing or prosecuting any officer 

for any trespass or tort done by him in putting in force and executing 

this law, on failure of convicting the party, or proving the case fully, 

so as to entitle him, her, or them, to recovery of damages, shall be 

liable and be deemed and adjudged to pay to the party so prosecuted 

or sued, treble costs; for which costs, the party prosecuted or sued, 

shall have his execution in the usual form, against such prosecutor or 

informer, as plaintiff in the cause, upon application to the Clerk of 

the Court, where the cause has been tried. 

It shall be lawful for any person or persons, who may be engaged 
in dispersing any unlawful assemblage of slaves, free negroes, mulat- 



LAW OF MAGISTRATES. 61 

toes or mestizoes, to enter into all such places, as the said persons May break 

open doors. 

may be assembled at, and if resisted, they may break open doors, &c. 
windows or gates. Act 1839, 69, 60 and 51. 



ATTACHMENT FOR DEBT. 

Attachment for debt is a process against the goods and chattels of 
a debtor, granted on the oath of a party, and on his or her agent 
giving bond with surety in double the sum to be attached. It lies 
first, in Foreign, where the applicant makes oath that the debtor is 
absent from and without the limits of this State. Secondly, Domes- 
tic, where the oath is, that the debtor absconds or conceals himself, 
so that the ordinary process of the law cannot be served upon him, 
or is removing out of the district privately, or intends to remove his 
effects. 

1st. Of the Bond, and the liability of the Plaintiff and 

HIS SURETY. 

2d. Of THE Affidavit, 

3d. Of THE Jurisdiction in Foreign and Domestic Attach- 
ment. 
4th. Of what is liable to Attachment, and the lien thereby 

CREATED. 

5th. Of the Garnishee. 

6th. Of Proceedings after Attachment. 

7th. Precedents. 

♦ 
1*^ Of the Bond, and Liability of the Plaintiff and Surety. 

Before granting an attachment, every magistrate shall take bond, 
with surety of the plaintiff or his agent, in double the sum to be D""bie the 

•' ^ ° . ' _ sum. 

attached, payable to the defendant, conditioned for the satisfying and condition, 
paying all costs which may be awarded to said defendant, in case the 
plaintifftherein shall discontinue or fail in his suit, as also all damages 
which may be recovered against the plaintiff for his suing out the 
same, which bond shall be returned to the Court to which the attach- 
ment is returnable — and in case of foreign attachment, the defendant 
is entitled," within two years, to appear before any magistrate of the 
district where the attachment was issued, who shall give notice to the 
plaintiff or his surety, and shall, upon hearing the case, determine the 
matter as to justice shall appertain, notwithstanding any previous 



62 LAW OF MAGISTRATES. 

judgement in the absence of the defendant, from which either party 

may appeal, as in other cases. 

2nd. Of the Affidavit. 

It is not necessary that the affidavit should be in writing, but it 

should be recited in the writ of attachment, and should not be in the 

Notinthe alternative, but must state positively the debt due, and the distinct 

alternative. , t-i , -i ii rr- i • ^ 

ground on which an attachment is demanded; and an affidavit that 
"the defendant is about to remove from without the limits of the State, 
or so absconds and conceals himself that the ordinary process of the 
law cannot be served upon him," is insufficient, as the affidavit should 
state positively the one or the other. Hagood vs. Hunter, 1 Mc, 571. 

Sd. Of the Jurisdiction in Foreign and Domestic Attachment. 

1st. Foreign. The jurisdiction of a magistrate, in foreign attachment is limited to 
twenty dollars; e.xcept in the town of Hamburg, under the Act of 1846, 
a party is not subject to such process, if ten days before leaving the 
State, he give notice of his intention to leave, by a written notice put 
up at the Court-house of the district, and at the muster ground of the 
Beat in which he resides. Act 1839, p. 18. 

Sd.Domestic. Rut the jurisdiction of a magistrate, in domestic attachment, is 
unlimited. Where the demand does not exceed the sum of twenty 
dollars, the attachment is directed to a constable, and is returnable to 
a magistrate. If it exceed that sum, but do not exceed the sum of 
eighty-five dollars and seventy-five cents, it may be directed either to 
a constable or the sheriff of the district, and is returnable to the next 
Court of Common Pleas, for the district where the same may be issued. 
If it exceed the last mentioned sum, it shall be directed to the sheriff. 
Act 1839, p. 18. 

Ath. What is liable to Attachment, and the lien thereby created. 

cliattei's, &c. By the terms of the Act of 1839, the goods and chattels of the 
debtor are liable to attachment, also all debts in the hands of any 
person indebted to the absent debtor, and it seems that goods and 
chattels are liable, in which he may have but a part interest, either 
as partner or joint owner with another. Schatzel vs. Boltin, 3 
Mc, 33. 

Land not. But an attachment froni a magistrate cannot be levied lipon land. 

As to the debts due to the absent debtor, a lien can only be created on 
them by actual notice to the parties indebted, and the mere attachino- 
books of account, will not create a lien upon the debts; and if the debt 



LAW OF MAGISTRATES. 63 

be by negotiable note, the maker thereof cannot be made a garnishee 
by reason of money due on such note. Gaffney vs. Bradford, 2 
Bail., 441. 

The attachment first le"vied is entitled to priority in regard to the Lig„_ 
effects attached. Robertson & Son vs. Forrest, 2 Bre., 466; and 
nothing will destroy the lien, except a dissolution by special bail. It 
takes precedence of a junior judgement. Goore & Danavant vs. 
McDaniel, 1 Mc, 480; and a judgement creditor of an absent debtor 
cannot set aside the attachment for irregularity. Kincaid vs. Neall, 
3 Mc, 201. 

bth. Of the Garnishee. 

The garnishee is a third party, upon whom a copy of the attach- . 
ment is served with notice to appear at the Court to which the same 
is returnable, and make answer on oath what he may be indebted to Must return 

9 . , on oath. 

the party against whom the attachment is issued, or what effects of 
said party he may have in his possession at the time of service upon 
him. If the garnishee makes default, or appears and acknowledges 
debts due by him, or effects of the absent debtor in his hands, then 
judgement may be entered against him, and execution issued for such Judgement 
amount as may be due by him, for such effects of the absent debtor 
as are in his hands, or so much thereof as maybe sufficient to satisfy 
the judgement and costs of the plaintiff in attachment, unless the said 
garnishee shall surrender the said effects, to be disposed of as when 
the same shall be levied in attachment, or claim as creditor in posses- 
sion, in which case, if his claim be established, he shall have a lien 
on the effects in his hands to the extent of his demand. Act 1839, 
page 19. 

If the garnishee return that he is not indebted to the absent debtor, 
and has none of his effects in his hands, such return may be falsified; Return may 
and on proof that he is indebted, or hath effects, judgement may be ^ *^' ^ • 
entered against him, as in case such eftects were admitted in his 
return. Westmoreland vs. Tlppins, 514. 

6th. Of Proceedings after Attachment. 

If an attachment, returnable to a magistrate, be returned as execu- 
ted, the defendant may appear, and may replevy the goods attached, 
by giving bond with good surety to the magistrate to abide and per- 
form the order therein made; but if the goods be not replevied, the 
subsequent proceedings shall be the same as an original process 
against the body of the defendant, where there is default of appear- 



64 LAW OF MAGISTRATES. \ 

Goods sold, ance, and all goods and effects so attached, and not replevied, may, by 
order of the magistrate, be sold towards the satisfaction of the plain- 
tiff's judgement, as if the same had been taken by execution. 

1th. Precedents. 

^ The State OF South-Carolina, > 

District. ^ 
Domestic Know all men by these presents, That we 

Bond. are held and firmly bound to {The party against whom the attachment 

is issued,) in the penal sum of (twice the sum for which attachment 
issues,) to be paid to the said his certain attorney, 

fexecutors and administrators, firmly by these presents. Sealed with 
our seals, and dated at the day of 

in the year of our Lord one thousand eight hundred and 

Whereas the above bound hath this day sued out a 

writ of attachment igainst the said before 

one of the justices of the district, &c. 

Now the condition of this obligation is such, that if the said 
shall satisfy and pay unto the said 
all costs that shall be awarded the said in 

case the said shall discontinue, or be cast in the 

said suit, and also all damages which shall be recovered against the 
said for suing out such attachment; 

then this obligation to be void and of none effect, or else to remain in 
full force and virtue. 

A. B. [l. s.] 

Magistrate, [i. s.] 

State of South-Carolina, } ' 

District. ^ 
Attachment Personally appeared who made oath that 

S!""**" ' is justly indebted to 

in the sum of and that the said 

is absent from the State, or so conceals himself, that the ordinary pro- 

cess of law cannot be served upon him. 

Sworn this 18 before me. 

To any lawful Constable, to wit: 

Complaint upon oath being made to me, by that 

is indebted to in the sum of 

and that he is now absent from the State, or so conceals himself that 
the ordinary process of law cannot be served upon him: you are there- 



LAW OF MAGISTRATES. 65 

fore required and commanded to seize, attach, and levy upon the 
goods and chattels of the said wherever they may be 

found, or so much thereof as may satisfy the said debt and costs. 

Given under my hand and seal, at . the day 

of 18 

A. B. [l. s.] ^ 

Magistrate. 

The State of South-Carolina. } 
District. ^ 
To the sheriff of district, or his lawful deputy, Domestic 

■> r 1 . 1 ^ X- Attachment 

or any lawiui constable — greeting: over*20. 

Whereas, has this day appeared before me, and upon oath, 

hath complained, and sworn, that is justly indebted to him in 

the sum of dollars, on by the said 

to the said and that the said is privately removing 

out of the said district of or absconds and conceals himself, 

so that the ordinary process of law cannot be served upon him: 

Therefore you, and each of you, are hereby commanded to attach 
the slaves, goods, and chattels, of the said or so much 

thereof as shall be of value sufficient to satisfy the said debt, and the 
costs of this process, wheresoever the same shall be fuund, or in the 
hands of any person or persons indebted to, or having any cfiects of the 
said so that you make the said a party in 

court, at the court of Common Pleas to be holden at the court house 
in in and for the district of aforesaid, on the 

day of to answer to the said of the 

complaint aforesaid. 

And you are further commanded, that at the time of the service of 
this process, you do summon such person or persons as are indebted 
to, or have any of the effects of the said to appear at 

the court aforesaid, to be holden as aforesaid, there to answer, upon 
08th, what he, or she, or they, is or are indebted to the said 
and what effects of the said he, she, or they, has or have 

in his, her, or their, hands. And that you return to the said court* 
to be holden as aforesaid, an account of your actings and doings herein, 
and this writ. 

Witness, Esq., one of the justices of the 

of the said district, at the day of in 

the year of our Lord one thousand eight hundred and and 

in the year of the sovereignty and independence of the 

United States of America. [l, s.] 

9 



LAW OF MAGISTRATES. 

ATTACHMENT FOR CONTEMPT. 

A contempt is punishable by an attachment of the person and com- 
mitment to close confinement, to which a fine is sometimes added. 
The power of attachment for contempt is not confined to courts of 
record, but a magistrate may fine and commit for contempt of his 
authority; and by the act of 1839, p. 18 and 19, any persori who shall 
in a magistrates court offer an insult to the magistrate, or a free- 
holder sitting with him, or who shall make any undue disturbance of 
the proceedings of a magistrate while sitting officially, is liable to be 
punished by said magistrate by a fine not exceeding twenty dollars, 
and imprisonment not exceeding twelve hours. By the same act, p. 
20, sec. 19, a magistrate may commit for one day to the jail of the 
district, any witness who shall refuse to give evidence without good 
cause shewn, and may fine him not exceeding ten dollars; and in the 
case of the State vs. Johnson, 1 Bre., 155, it was held, that the 
power of commitment for contempt is not confined to cases of open 
court, but that he has that pou'er for any contempt towards him while 
engaged in his official duties. 



ATTEMPT (TO COMMIT CRIME.) 



Offer to 
bribe. 



Provoking 
another to 
challeoge. 



An attempt to commit a felony is in many cases a misdemeanor; 
and an attempt to commit even a misdemeanor has been decided in 
many cases to be itself a misdemeanor. And the mere soliciting 
another to commit a felony is a sufficient act to constitute the misde- 
meanor. Thus, to solicit a servant to steal his master's goods, so an 
offer to bribe a judge, a juryman, or a voter, is a misdemeanor; and 
an attempt to suborn a person to commit perjury, upon a reference to 
the judges, was unanimously holden by them to be a misdemeanor. 
Procuring counterfeit silver coin, with intent to utter it, is a criminal 
offence, and clearly punishable as a misdemeanor, and the having a 
large quantity in possession will be held evidence of such procuring. 
1 Russel, 44-47. 

In the case of Comn vs. Tibbs, 1 Dana, 524, it was held, that words 
insinuating a desire to fight with deadly weapons, as they tend to 
provoke, such combat may amount to a misdemeanor at common law; 
iand in the case of Rex vs. Philips, 6 East., 464, the endeavouring to 



LAW OF MAGISTRATES. 07 

provoke another to send a challenge was held to be an indictable 
misdemeanor. 1 Russel, 275. 

A party may be indicted for an attempt to commit a rape; and in to commit 
the case of State vs. Shepard, 7 Comm. Rep., 54, it was held, that ^^ * 
proof of a rape would sustain an indictment for an attempt, the latter 
offence being necessarily included in the former. Yet, in such cases, 
and in attempts to murder and so forth, the party may usually be 
indicted for an assault with intent to commit an offence. 



ATTORNEY, AND POWER OF ATTORNEY. 

An attorney is a person appointed by another to do any thing in 
his turn, place, or stead; and by the term, is most frequently meant 
attorney at law, but its use here is restricted to what is most frequently 
meant by the term agent. 

Is/. How appointed. 

An attorney may be constituted either by parol or by deed, and gy parol, 
one person may constitute another his agent or attorney in a certain Deed, 
line of business, by the recoo-nition of former acts done by such attorney 

■' ° _ •' •' Kecognition. 

in such business; and the suffering a paity to hold himself out as q^ g^^g^. 
your attorney, without contradiction, will be regarded as a proof of^'"^®' 
appointment ; but generally when the act to be done by the attorney 
requires a deed, the appointment of such must be by deed also. 1 
Liv., 34-37. 

2d. Who may act as attorneys. 
A naked authority may be delegated to an.y person. Thus, married 

• r- 1 ■ o 1 • T • 1 Married 

women, infants, aliens, &c., may be attornies; 1 Liv., 32 : and a women, etc. 
master may constitute a slave his agent; Chastain vs. Bowman, 1 
Hill, 270 : and in regard to the ordinary transactions that are usually 
done by the wife, the law will presume the assent of the husband. 
But an authority, coupled with an interest and not collateral to it, 
cannot be executed by an infant or married woman. 1 Liv., 32. 

Zd. Of the authority oj attorney, and revocation. 
The authority of an attorney is either general or special, according General, 
to the nature of the appointment. If a person be a general agent, 
the principal is bound by his acts, provided they are within the 
general scope of his authority. But an agent constituted for a parti- 
cular purpose, cannot bind the principal by any act in which he gpg|,j^,_ 
exceedvs his authority; 1 Liv., 107 : and delegated authority must be 



oe LAW OF MAGISTRATES. 

pursued strictly, and an act done by an 'attorney should be done in 
the name of the principal. Welsh vs. Parish, et al, 1 Hill, 155. 
The authority of an attorney may be revoked fey the marriage of the 
principal, being a single woman, by the death of the principal, and 
Revocation, by express revocation, except when executed for valuable considera- 
lion, in vs^hich case it is irrevocable. 

Ath. Form of power of attorney. 

Know all men by these presents, that have 

♦ constituted, made and appointed, and by these, presents do constitute, 
make and appoint true and lawful attorney, for 

and ii> name and stead, and to use, to ask, demand, sue 
for, levy, recover and receive all such sum and sums of money, debts, 
rents, goods, wares, dues, accounts, and other demands whatsoever, 
which are or shall be due, owing, payable, or belonging to or 
detained from any manner of ways or means whatsoever; by 

Giving and granting unto said attorney 

by these presents, full and whole power, strength and authority, in 
and about the premises : to have, use, and take all lawful ways and 
means in name for the recovery thereof; and upon the receipt of 
any such debts, dues, or sums of money aforesaid, acquittances, or 
other sufficient discharges, for and ♦in name, to make, seal 
and deliver, and generally all and every other act and acts, thing and 
things, device or devices in the law whatsoever, needful and neces- 
sary to be done in and about the premises, for and in name, 
to do, execute and perform, as fully, largely and amply, to all intents 
and purposes, as might or could do, if personally present, or 
if the matter required more special authority than this herein given, 
and attorneys one or moreunder for the purpose aforesaid, to 

make and constitute, and again at pleasure to revoke : ratifying, 
allowing and holding, for firm and effectual, all and whatsoever said 
attorney shall lawfully do in and about the premises, by virtue hereof. 

In witness whereof, have hereunto set hand and seal : 

dated at the day of in the year of our Lord one 

thousand eight hundred and and in the year ofthe 

Sovereignty and Independence of the United States of America. 

Sealed and delivered in the presence of 

[L. S.] 

Note. — If the power be to convey land, it must be witnessed by two witnesses; 
and if it is to be used in another State, then it should be sworn to by one of the 
witnesses, and the official character and signature of the magistrate should be 
certified by the clerk of the court under the seal thereof, and the certificate of the 
judge attached, that such person is the clerk of said court. 1 M. Con. Rep., 280. 



LAW OF MAGISTRATES. 69 

AUCTIONS AND AUCTIONEER. 

1st. Who can sell at Auction. 
Any citizen of this State shall be at liberty to sell at auction, either 
his own or the property of another person, provided he secures to the 
State or city, as the case may be, the duties which are or may be 
imposed by law on sales at auction: but before he shall act in such 
capacity, he must give to the Council of the city or town, where he 
may reside, full and ample security for the due and faithful perform- 
ance of his duty as auctioneer or vendue master, as the case may be. 
6th S. L., SOU. 

2d. Liability of purchaser at Auction. 

Every person who shall purchase any lands, slaves, houses, &c., at 
any public sale in this State, and which purchase shall be entered in 
the books of the vendue master so selling such property, and who shall Refusing to 
refuse to comply with the conditions of the said sale, within seven days*^°™^^" 
thereafter, shall be liable to all losses arising therefrom. And the 
auctioneer may resell such property on the original conditions; giving 
seven days notice of said sale, and recover from the non-complying 
purchaser, the expenses and commissions of the second sale, and 
the deficiency arising from s'uch purchaser's non-compliance. 4th S. 
L. 672. 

But this is to be understood of an actual and fair sale at auction; 
and a party would not be liable, as a purchaser, on a bid withdrawn g.^^. 
before the hammer is down. Durn & East., 148, — and the employ- drawn, 
ment of underbidders to puff at such sales, will vitiate them, and apygg^g 
purchaser would not be bound to comply. 



BAIL. 

1st. What is Bail, a>d the Power of the Bail. 

2d. When a Magistrate may Bail, or discharge without Bail: 

3d. Amount of Bail, and requiring excessive Bail, 

4th. Refusing or granting Bail illegally. 

5th. Of Bail by Habeas Corpus. 

6th. By a Judge in open Court, or at Chambers. 

\st. What is, and the power of the Bail. 
Bail signifies the delivery of a man out of custody, upon the under- 



70 LAW OF MAGISTRATES. 

taking of one or more persons for him, that he shall appear at a day 
limited to answer, and be justified by the law. The reason why it is 
called Bail, is, because the party restrained is thus delivered into the 
hands of those who bind themselves for his forthcoming, in order to a 
safe keeping or protection from prison. Burns' Justice. 

The party thus delivered is regarded as in the custody of his bail, 
who has power at any lime to arrest the said party, and surrender him 
to a magistrate in discharge of himself. 

2d. When a Magistrate may Bail, or discharge without Bail. 

\st. In Civil Cases. — Any magistrate is authorized and required 
to give, on proper affidavit, an order for reasonable bail, in any action, 
wherein bail be proper, but not of course, at the time of commencing, 
or during the pendency thereof, in any Court of Common Pleas, in 
the district where such magistrate resides, and may discharge the 
other duties and exercise the other honors of commissioners of special 
bail. Act 1839, p. 20, sec. 21. 

2d. In Criminal Cases. — By the Act of 1839, p. 14, sec. 6, no 

Not in cases magistrate shall let to bail any person charged with any offence, the 

abie!^'^^^ punishment of which is death, M'ithout benefit of clergy, but may 

admit to bail in all other cases; and if any person under lawfu larrest, 

au others'." on a charge regularly made, and not bailable, be brought before a 

magistrate, he shall commit him to jail; but if the offence charged be 

bailable, the magistrate shall take recognizance with sufficient surety, 

^ if offered; in default thereof, such party shall be comn5itted to prison, 

unless it clearly appear, upon examination, that the charge is not 

founded in probability, in which case, the party may be discharged. 

Zd. Of the amount of, and requiring excessive Bail. 

Before the Act of 1839, the amount of bail was almost wholly 

within the discretion of the magistrates. But that Act, page 15, sec. 

7, limits him, in a great measure, and establishes the following scale. 
Incases ^^^' I^^he offence charged be punishable by fine and imprisonment, 

by fine^'''^ the amount of bail shall not be for less than two-hundred doilars, and 

if the fine be specified or limited, by statute, it shall not be for less 

than ihe greatest extent of such fine, 
^'ntshment ^'^^ ^^ corporal punishment shall or may be imposed, it shall not 

be for less than three hundred dollars. 

3d. The recognizance of any prosecutor or witness, in case of mis- 
Of a witness. (jgfjjg^^Qj.^ shall not be for less than one hundred dollars, and in case 

of capital felony, for not less than five hundred dollars. To which 



LAW OF MAGISTRATES. 71 

may be added, the following list of offences, to which the statute 
limits a fine. 

Bail not less than 

Gaming or keeping a gaming table, . . . $500 

Keeping a house for gaming, . . . . . 2000 

Purchasing from a slave cotton, rice, &c., . . 1000 

Giving, without authority, a ticket to a slave, . . 1000 

Abduction of a free person of color, . . . 1000 

Killing a slave in sudden heat and passion, . . 500 

Violating any of the Quarantine rules, . . . 2000 

Though a magistrate may not admit to bail in a less amount than 

is established in the aforesaid act, yet the circumstances of the case 

may frequently require more, and the amount above the said scale is 

within his discretion, except that by the declaration of rights, and by 

the Constitution of 1790, excessive bail shall not be required. 

AUi. Refusing or granting Bail illegally. 

Admitting bail where it ought to be denied, is punishable by a fine, 
or as a negligent escape at common law; and the refusing bail when 
the party ought to be bailed, is a misdemeanor, punishable notgnly at 
the suit of the party, but by indictment. Grimke, 49. 

bill. Of Bail by the Habeas Corpus. 

By the Act of 1839, p. 15, sec. 9, any two magistrates are autho- 
rized and required to execute the provisions ot an act for the better trates may 
securing the liberty of the subject, and for the prevention of impri- 
sonment beyond tlie seas, commonly called the Habeas Corpus Act; 
and every matter, clause or thing, therein contained, according to 
their true intent and meaning, as fully, effectually, and lawfully, as 
any judge of the Court of General Sessions and Common Pleas, or 
any Chancellor of this State. And if any magistrate shall wilfully 
neglect, refuse, or omit to grant the writ of Habeas Corpus to any 
person or persons requesting or demanding the same, who may be 
legally entitled to request or demand the same by the said act, he shall 
forfeit for any such default, the sum of five hundred dollars. See 
Habeas Corpus. 

6th. When a Judge may admit. 

1st. Before Conviction. — The Court of General Sessions, by virtue 
of its general powers, in criminal matters, may, in term time, or at 
Chambers, admit a prisoner to bail in all offences and felonies what- 



72 LAW OF MAGISTRATES. 

ever. But it is a power to be exercised with discretion, and a party 
charged with an offence, not bailable hy the statute, will not be admit- 
ted to bail, unless there are some particular circumstances in his favor. 
State vs. Everett, Dudley, 300. 

And in the case of the State vs. Hill, 1st Tr. C. R., 242, it was 
held, the prisoner in a proper case might be bailed, even after indict, 
inent found. 

2d. After Conviction. — In minor offences, such as aisault and bat- 
teries, and even in manslaughter, a party maybe bailed after con- 
viction pending an appeal, but a party convicted of an infamous 
offence may not be bailed. State vs. Frink, 1 Bay, 168; and State 
vs. Connor, 2 Bay, 34. 



Definition. 



BARRATRY. 

1st. What is. 

2d. How Punished. 

1st. What is Barratry. 
A Barrator, in legal acceptation, signifies a common mover, exciter, 
or maintainer of suits or quarrels, either in the Courts, or in the coun- 
try. 1 Inst., 368. 1 Haw,, 243. 1. By disturbance of the peace. 
2. In taking or keeping of possession of lands in controversy, not 
only by force, but also by subtilty and deceit; and most commonly in 
suppression of truth and right. 3. By false inventions and sowing of 
calumniations, rumors and reports, whereby discord and disquiet may 
grow between neighbors. 1 Inst., 368. 

No one can be a barrator in respect of one act only, for every 
indictment for such crime must charge the defendant with being a 
Notforone common barrator. 1 Haw., 243— 244. 

An attorney is in no danger of being judged guilty of an act of 
barratry, in respect of his maintaining another in a groundless action, 
Attorney, to the commencing whereof he was no way privy. 1 Haw., 243. 

Also a man shall not be adjudged a barrator, in respect of any 
number of false actions brought by him, in his own right; for in such 
^^^°''^°' cases he is liable to costs. 1 Haw., 243. 

2J. How Punished. • 

The punishment for barratry is fine and imprisonment at the discre- 
tion of the Court, and if the party be of the legal profession, his name 
will be stricken from the rolls. State vs. Chitty, 1 Bail., 379. 



LAW OF MAGISTRATES. 73 



B A S>T A R D S . 

1st. Who are Bastards. 

2d. How THE Mother and the Father are to be proceeded 

AGAIIVST. 

3d. Murdering a Bastard Child. 

4th. Capacity of a Bastard as to Inheritance. 

5th. Precedents. 

Isi. Who are Bastards. 

A bastard is one not only begotten, but born out of lawful matri- Bom out of 
Kiony, either before marriage, or so long after the death of the husband, ^^ 
that by the usual course of gestation, it could not be begotten by him. 

Children born i;i wedlock may, under some circumstances, be bas- 
tards, as where the husband is absent from the country for above nine Absence of 
months before the birth, or the husband and wife live apart under a '^^"'^'^" 
legal divorce, but not where they live apart by mere voluntary agree- 
ment. B. C, 1, 454. 

2d. How Father and Mother are to be proceeded against. 
By the Act of 1839, p. 16, sec. 12, any white woman, the mother 
of a bastard, may voluntarily lodge information before a magistrate as 
to who is the father; and if she do not voluntarily give such infor- 

1 1 I M 1 1 Ti 1 • 1 1 1 I 1. . rnformation 

malion, and such child be likely to become a burthen to the district, by mother, 
she may be arrested and committed to jail until she declare who is the 
father of said child, or give security that the said child shall not 
become chargeable to the said district. The magistrate before 
whom information is lodged, is required to issue his warrant against warrant 
the person accused of being the father of a bastard child, and to com- father. 
pel him to enter into a recognizance, with two good and sufficient 
sureties, in the penal sum of three hundred dollars, conditioned for the 
payment of twenty-five dollars annually for the maintenance of said 
child, until the age of twelve years, and to save harmless the said 
district. If the party refuse to give such recognizance, he shall be Refusing to 
committed to prison, there to remain until he shall do so. But if he^aybe" ' 
be unable to comply with the foregoing requisitions, or should he '^""""'"'^ • 
deny that he is the father of the said child, a jury shall be charged in on denial, 

.,/->,,,. o ■ . . 1 • 11 1 • ■ . ^1 bound over 

the Court or bessions to try the question, whether he is or is not the to sessions. 
father of such child; and if convicted, shall be required lo give the 
recognizance and security before required, and in default thereof, the 
10 



74 



LAW OF MAGISTRATES. 



Bench 
warrant. 



Court shall bind him out to service for any time not exceeding four 
years, and the proceeds of his labor shall be applied to the purposes 
aforesaid. By Act of 1847, p. 436, the clause which authorizes the 
binding out of the defendant, is repealed, and he is liable to execution 
as in other cases of misdemeanor; such execution to be stayed, except 
as to costs, on the payment of twenty-five dollars annually. 

If the person accused evade or resist the warrant of the magistrate, 
the constable should return the same with special note, on oath,totho 
Court of Sessions, whereupon a bill of indictment may be given oi't, 
and if found, a bench warrant may issue. By the old precedents, it 
would seem that proceedings might be had against a woman with 
child, and the begetter thereof before the birth of the child; but no 
such authority is given for such proceedmgs by any Act of the Assem- 
bly of this State, and according to the case of K. and Chandler, 1 
Burns, 276, a child cannot be illegitimate before its birth, there being 
always a possibility that it may be born in lawful wedlock. 



Concealing 
the death. 



Deatli by 
potion. 



Sd. Murdering a Bastard Child. 

Formerly by the statute 21 J. 1st., c. 27, any woman concealing 
the death of a child, which, if born alive, would have been a bastard, 
was liable to suffer death, as in case of murder, unless she could prove 
by one witness, at the least, that such child was born dead. But the 
severity of said statute was in a great measure removed by construc- 
tion, and finally the statute was repealed by the Act of 1795; so that 
the mere concealment of the birth of a bastard child is no longer to 
be regarded as proof of its murder; but the question whether the child 
was, or was not born alive, is a matter to be determined from the 
whole of the circumstances of the case; and it seems that there must 
appear some signs of hurt or some m;irks of violence upon the body, 
to warrant a conviction of the mother for murder. 2 Haw., 438. 

If the death of the child be brought about by a potion taken to pro- 
cure abortitin. ii. is not murderer manslaughter, unless it appear that 
it was born alive, and afterwards died of the poison, in which case it 
is murder, both in the party taking and the party administering; 1 
Haw., 80. And if one administer poison to a pregnant woman, for 
the purpose of procuring abortion, and tho woman die thereof, it is 
murder. 1 H. H.,.429; and if a person shall procure a pregnant 
woman to destroy her infant when born, and the child is born, and 
the mother in pursuance of that procurement kills the infant, this is 
murder in the mother, and the procurer is accessary. 1 H. H., 433. 



LAW OF MAGISTRATES. 75 

^th. Capacity of a Bastard, as to inheritance. 
A bastard can inherit nothing, being looked upon as the son of 
nobody; but he may take by gift or devise, if he be sufficiently May take by 
described, and have gained a name by reputation. 1 B. C, 459, n. 
19. But by the act of 1795, 5th S. L., 271, if any person, living in 
this State, or having an estate therein, have a lawful wife, he is not 
at liberty to give, settle, convey, devise or bequeath, intrust or other, 
wise, to any bastard child or children, or to any woman with whom 
he lives in adultery, more than one-fourth of his estate, after payment Not more 

than one 

of debts; and such gift, &c. is declared void for so much of the amount quarter, 
and value thereof as shall or may exceed such fourth part. 

btli. Precedents. 
\st. Examination of the Mother. 

South-Carolina, } 
District. ^ 

The examination of A. M., of , in the district aforesaid, 

single woman, taken on oath before me, B. C, one of the magistrates 
for the said district, this day of , in the year , who saith 

that on the day of , last past, at , in the district aforesaid, 
she the said A. M., was delivered of a (male) bastard child (insert for 
particularity the color of the eyes and hair,) and that A. F., farmer 
of the district of , did get her with child of the said bastard child. • 
Taken and signed the year and day above written, before me. 

A. M. 
B. C, 

Magistrate. 

^d. Information of person other than the mother. 

South Carolina, > 
District. ^ 
The information of C. D. of in the district aforesaid, taken on 

oath before me, B. C, magistrate for the said district, this day 
of in the year who saith that A. M., a single woman, in the 

district aforesaid, within months last past, was delivered of a bastard 
child, and that the same is likely to become chargeable to the district. 
Taken and signed the year and day above written, before me. 

CD. 
B.C., 

Magistrate. 



76 LAW OF MAGISTRATES. 

3d. Warrant for the mother of a bastard. 

District. > 

By B. C, magistrate in and for the district aforesaid. 

To any lawful constable. 
Whereas, complaint hath been made unto me that A. M., a single 
woman of the district aforesaid, hath within months last past been 
delivered cf a bastard child, and that it is likely to become chargeable 
to the district. These are therefore to command you, that you bring 
the said A. M. before me, at on the day of at o'clock, 

to be examined touching the premises. Thereof fail not, as you will 
answer the contrary at your peril. Given under my hand and seal, 
this day of in the year 

B. C, [l. s.] 

Magistrate. 

Ath. Warrant to apprehend the reputed father. 

District. > 

By B. C, magistrate in and for the district aforesaid. 

To any lawful Constable. 
Whereas A. M., single woman of in the said district, hath, by 
her examination taken in writing upon oath before me, declared that 
on the day of last past, she was delivered of a bastard child, 

and charged A. F., farmer of the said district, with having gotten her 
with child of the said bastard child. 1 do, therefore, hereby command 
you forthwith to apprehend the said A. F., and bring him before me, 
to be dealt with according to law. Given under my hand and seal, 
this day of in the year 

B. C, [l. s.] 

Magistrate. 

bih. Recognizance of the father. 

The State of South Carolina. 

Be it remembered, that on the day of in the year of our 

Lord one thousand eight hundred and personally appeared A. F., 
A. B., and C. D., before me, B. C, magistrate in and for the said 
State, who acknowledged themselves indebted to the State of South 
Carolina; that is to say, the said A. F. in the sum of three hundred 
dollars, and the said A. B. and C. D. each in the sum of three hundred 
dollars, like money, to be levied of their separate lands and tenements, 



LAW OF MAGISTRATES. 77 

goods and chattels, respectiveljj to and for the use of the said State, 
* if the above mentioned A. F. shall fail in perfornjing the condition 
underwritten. 

The condition of this recognizance is such, that if the said A. F. 
pay the sum of twenty-five dollars annually, for the support and main- 
tenance of a bastard child begotten of A. M., until such child shall be 
of the age of twelve years, and shall save harmless the district of 
for the support of said child, then this recognizance to be null and 
void, or else to remain in tull force and virtue. 

Taken and acknowledged the day and year above written, before me. 
B.C., A. F. [l. s.] 

Magistrate. A. B. [l. s.] 

C. D. [l. s.] 
In case of the mother giving bond rather than declare, let the bond 
be as above, with a condition merely to save harmless the district. 



BAWDS AND BAWDY HOUSES. 

A woman cannot be indicted for being a bawd generally, for that 
the bare solicitation of chastity is not indictable; Haw. 196. But 
the frequenting a bawdy house is indictable; and it must be expressly j-iequenting. 
alleged that it is a bawdy house, and not that it is suspected io be so; 
Wood, p. 3, c. 3. The keeping a bawdy house is indictable as a jjeepin„ 
common nuisance, as it endangers ihe public peace by drawing 
together dissolute and debauched persons, and also has a tendency to 
corrupt the manners of both sexes by such an open profession of 
lewdness. And it has been adjudged that this is an offence of vi'hich 
a married woman may be guilty; and' that she, together with her 
husband, may be convicted of it. If a person be only a lodger, and 
have but a single room, yet if she make use of it to accommodate 
persons in the way of a bawdy house, it will be a keeping of a bawdy 
house as much as if she had a whole house. 1 Russell, 299. 

By the Act of 1836, 6th S. L., 553, any person keeping a baw^y 
house within ten miles of South Carolina College, orbeins an inmate Near So. Ca. 

■^ ' = College. 

of such, or who shall gain a maintenance by common prostitution, is 
liable to be proceeded against as a vagrant ; and on conviction, shall 
be required to enter into recognizance in the sum of two thousand 
dollars, with two sureties, (free-holders) each in the sum of one thou- 
sand dollars, conditioned not to offend against the said act for tho 



78 



Magistrate 
required to 
proceed. 



LAW OF MAGISTRATES. 

space of three years; and in default, shall forthwith be committed to 
the jail of the district, to be dealt with as a vagrant. If any person 
having given bond shall offend again, such person shall be liable to 
indictment; and on conviction, to a fine for each day so offending* 
not exceeding one thousand dollars, and to imprisonment not exceeding 
twelve months. . 

Any magistrate is required, upon the written requisition of the faculty 
of the said college, or of the solicitor of the circuit, suggesting the 
name of the offender, and the M'itnesses necessary to the investigation, 
to arrest the party charged ; and if the testimony appear sufficient, to 
organize a court as for the trial of vagrants, before which such offender 
shall be tried and dealt with as before directed; and every sheriff or 
constable, to whom any process for the enforcement of the said act 
may be directed, is required to execute the same with all possible 
despatch, according to its mandate. 

In addition to the fine imposed, the party convicted under the said 
act is liable to the solicitors costs of three hundred dollars. 



BEHAVIOUR, BOND FOR GOOD, AND FOR THE PEACE. 

1st. For good behaviour. 

2d. For the peace. 

3d. Against whom grantable. 

4th. What shall be a forfeiture. 

5th. How discharged, 

6th. Precedents, 



Ale houses. 
Bastardy. 

Bawdry. 



Isl. For good behaviour. 

Those who are of ill fame, or common disturbers of the peace, those 
who are accused, or guilty, of any of the offences hereinafter specified; 
may be required by one justice to enter into a recognizance, with 
sureties or without them, according to the discretion of the magistrate, 
to be of good behaviour; and upon refusal, may be committed. 

The offences for which persons may be bound to good behaviour, are, 

Those who tipple frequOTtly in them, or in taverns. 

Those who are reputed to be the fathers of bastard children; likewise 
the mother of such child, if it be chargeable to the par is Ji. 

Those who frequent bawdry houses, or who keep them. 



LAW OF MAGISTRATES. 79 

Those who cheat by cards, dice, false letters, or any game or games cheaters and 

cozeners. 

whatsoever. 

Convicted by one magistrate, or by proof. Drunkards. 

Those who keep or frequent gaming houses, and those who game Gaming, 
and have no estates to support themselves. 

Those who raise it without cause. Hue and cry. 

Those who have no estates, trades, or employments to support wie persons, 
themselves. 

Those who contrive, procure, or publish them, whether true or 
false, either against persons living or dead, by writings, words, pic- 
tures, or any other signs. 

Of any kind whatsoever; this is within the discretion of the raagis- Misbeiia- 
trate, it being a general word. The expression of justice Blackstone 
is: such persons whose misbehaviour may reasonably bring them 
within the general words of the statutes, as persons of not good fame; 
and a magistrate who commits for want of sureties, must express the 
cause with sufficient certainty, and take care that the cause be a good one. 

Those who are suspected to steal any thing in the night, or to 
commit any misdemeanor against the person and goods of another. Night waik- 

Those who are guilty thereof. 

Those of bad reporter name. auarreis. 

Those who keep suspicious company, or are suspected and reported Repute. 
lo be pilferers or robbers. Suspicion. 

The author of a writing full of obscene ribaldry, without any reflec- 
tion on any one, is not punishable by any prosecution ; yet he may 
be bound to his good behaviour as a scandalous person of evil fame. — 
1 Nel., 118. 

2d. For the Peace. 
All persons of sane mind, citizens, aliens, infants, and feme coverts, ^[^^ ^^^ 
have a right to demand sureties for the peace. But to a person not <'®'^'*"'* *'• 
of sane mind, this surety shall not be granted upon his own request; 
but yet if there be cause, the magistrate ought to provide for his safety. 
Dalt., 0. 117. Nor should it be granted at the request of a drunken 
person. Sureties for the peace may be demanded by the magistrate „ . 

"^ . . •' ° By Magis- 

of persons guilty in any way of breaking the peace, by affrays, trate. 

assaults, battery, fighting, quarrelling, riots, suspected to break the 

peace, threatening, &c. But it is generally demanded, at the instance 

of the party, and is grantable on his oath, that he has just cause to By the party. 

fear that another will burn his house, or do him a corporal hurt, or 

that he will procure others to do him such mischief, or that another 



80 



LAW OF MAGISTRATES. 



For wife 
and child. 



For slave. 



Intent. 



Nearest 
Magistrate. 



has threatened to imprison him; for every unlawful imprisonment is an 
assault; 1 Haw. 127. If a man have reason to fear that another will 
hurt his wife or child, he may crave the peace, but not for his servants 
or cattle; Dalt., 16. The reason why a man may not crave the peace 
for his servant, is, that the servant's own oath is necessary, and this 
reason not applying to the case of a slave, it would seem that a master 
may crave the peace against a person whom he fears will do some 
injury to his slave. 

But when a magistrate shall perceive that surety is demanded, 
merely for malice or vexation, without, any just cause of fear, he may 
safely deny it. So, if a man will require the peace, because he is at 
variance or in suit with his neighbor, it shall not be granted; Dalt., 
c. 116. And if the parlies live at a distance from the magistrate, he 
should not grant surety of the peace, unless application has been 
made first to a magistrate in the neighborhood. 2 Bur., 780. 



By violence, 
&c. 



Not by a 
baie trespass. 



Nor by 
words. 



For good 
behavionr. 



3d. Against whom grantable. 

Surety for the peace or good behaviour, may be craved generally 
against all persons of sane memory; against impotent persons, for they 
may procure another to do an injury; infants, and married women, 
(yet they are not bound, only the sureties, and a married woman may 
be required to give such surety on the application of the husband;) 
lunatics, having lucid intervals; but according to Nelson's Justice, it 
is not demandable of one blind, deaf or dumb. 

Ath. What shall he a forfeiture. 

A recognizance for keeping the peace may be forfeited by any 
actual violence, or even an assault or menace to the person of him 
who demands it, if it be a special recognizance. Or if the recognizance 
be general, by any unlawful action whatever that either is or tends to 
a breach of the peace, or by any crime against the public peace, or 
by any private violence to any person. But a bare trespass upon the 
I lands or goods of another, unless accompanied with a wilful breach of 
the peace, is no forfeiture of the recognizance; neither are mere 
reproachful words, as calling a man a knave, or liar, any breach of 
the peace, so as to forfeit one's recognizance, unless they amount to a 
challenge to fight. 4th B. C, 256. 

A recognizance for good behaviour may be forfeited by all the 
same means, as one for the security of the peace may be, and also by 
some others — as by going armed with unusual attendance to the terror 
of the people, or by committing any of those acts of misbehaviour 



LAW OF MAGISTRATES. 81 

which the recognizance was intended to present. But not by giving 
fresh cause of suspicion of that which may never actually happen; 
for though it is just to compel suspected persons to give security to the 
public against misbehaviour that is apprehendedAyet it would be hard 
upon such suspicion, without proof of any actii^crimef-to punish them 
by forfeiture of their recognizance. 4th B. C, 257. 

bfh. Hoio such recognizance may he discharged. 

Such recognizance may be discharged by the death of the principal By death, 
party bound thereby, if not before forfeited by order of the Court of 
Sessions; or by the release of the party at whose request it was Or by release 
granted. 4th B. C, 454. 

Qtli. Precedents. 
\st. Affidavit for the 'peace. 

District. > 

Personally appeared A. B., who being duly sworn, deposes and 
says, that he has good reason to fear that C. D. will do, or attempt 
to do, him some bodily injury, (or that he will do, or attempt to do, 
some injury to A. F., the wife of deponent) (or A. D., the child, or 
slave of deponent) or procure the said to be done, and that he does 
not require the peace of him for any malice, vexation, or revenge, but 
for the causes aforesaid; and he prays surety for the peace. 

Sworn to before me, this day of A. D., 

A. B. 

B. C, 

Magistrate. 

2d. Warrant for the peace. 
South-Carolina, ^ 
District. ^ 
By B. C, magistrate in and for the said State. 

To any lawful Constable. 
Whereas complaint on oath has been made to me by A. B., that he 
has good reason to fear bodily injury to himself (or some of his family) 
from C. D. 

These are, therefore, to command you, forthwith to apprehend C. 
D., and bring him before me, to be dealt with according to law; and 
herein fail not, under the penalties that shall ensue thereon. 
Given under ray hand and seal, this day of » A. D. 

B. C, [l. s.] 

Magistrate. 
11 



82 LAW OF MAGISTRATES. 

3<Z. Warrant for good behaviour. 
South-Carolina, ) 
District. j 
By B. C., magistrate in and for the said State. 

To any lawful Constable. 
Whereas it appears to me, from the testimony and complaint of 
many good and creditable citizens of the said district, that A. O. and 
B. D., of the said district, (here insert any of the causes for which 
the party is to be bound for good behaviour.) 

These are, therefore, to command you, forthwith to arrest the said 
A. O. and B. D., and bring them before me, to be dealt with according 
to law; and herein fail not, &c.; and have you before me this precept. 
Given under my hand and seal, this day of A. D. 

B. C, [l. s.] 

Magistrate. 

Ath, Recognizance for the peace, and good behaviour. 
The State of South Carolina. 

Be it remembered, that on the day of A. D. personally 
appeared A. O., B. D. and E. F., before me, B. C, magistrate in 
and for the said State, who acknowledged themselves indebted to the 
State of South Carolina ; that is to say, the said A. O. in the sum of 
and the said B. D. and E. F. each in the sum of like 

money, to be levied of their separate lands and tenements, goods and 
chattels, respectively, to and for the use of the said State, if the above 
mentioned A. O. shall fail in performing the condition underwritten. 

The condition of this recognizance is such, that if the said A. O. 
do keep the peace of the State, and be of good behaviour towards all 
the citizens thereof (if it be at the request of a private person, add, 
"and especially towards such person,") for a year, then Lhis recogni- 
zance to be null and void, or else to rem? In in full force and virtue. 
Taken and acknowledged the year and day above written, before me. 
B. C, A. O. . [l. s.] 

Magistrate. B. D. [l. s.] 

E.F. [L. s.] 

^th. Commitment. 

South- Carolina, 'i 
District. ^ 
By B. C, magistrate in and for the said State. 
To any lawful Constable, and the keeper of the common jail in said 

district. 



LAW OF MAGISTRATES. 83 

Whereas A. O., of the said district, is now brought before me, B. 
C, magistrate in and for the said State, on a charge requiring him to 
find sufficient sureties to keep the peace of the State, and be of good 
behaviour towards all the citizens thereof (and "especially towards 
A. B.") for a year; and whereas he, the said A. O., hath refused, and 
doth now refuse before rae, to find such sureties : These are, there- 
fore, to command the said constable forthwith to convey the said A. 
O. to the common jail of the said district, and to deliver him to the 
keeper thereof, together with this precept ; and you, the said keeper, 
are hereby required to receive the said A. O. into your custody in 
the said jail, and him there safely keep until he shall find such sureties 
as aforesaid. 

Given under my hand and seal, this day of A. D. 

B. C, [l. s.] 

Magistrate. 

6th. Discharge. 
South Carolina, } 
District. ^ 
By B. C, magistrate in and for the said State. 

To the keeper of the jail for the said district, greeting : 
Forasmuch as A. O., in your custody now, for want of his finding 
sureties to keep the peace of the State, and be of good behaviour, hath 
found before me sufficient sureties in that behalf: These are, there- 
fore, to authorize and require you, that if the said A. O. do remain in 
jail for no other cause, then you forbear to detain him any longer, but 
suffer him to go at large, and that, upon the pa.in that will fall therein. 
Given under my hand and seal, this day of A. D. 

B. C, [l. s.] 

Magistrate. 



BENEFIT OF CLERGY, 

Is an indulgence allowed by the law to persons convicted of certain 
offences for the first time, and who, but for such indulgence, must 
suffer death for such offence. 

\st. When allmcable. 
According to the summary of Justice Blackstone : 
1st. In all felonies, whether new, created, or by common law, 
clergy is allowable, unless taken away by express words of a statute. 



84 LAW OF MAGISTRATES. 

2d. That where clergy is taken away from the principal, it is not 
of course taken away from the accessary, unless he be also particu- 
larly included in the words of the statute. 

3d. That when the benefit of clergy is taken away from the offence, 
(as in case of murder, buggery, robbery, rape, arson, and burglary) 
a principal h\ the second degree being present, aiding and abetting 
the crime, is as well excluded from his clergy as he that is principal 
in the first degree. 

4th. But where it is only taken away from the person committing the 
offence, (as in the case of stabbing, or committing larceny in a 
dwelling house, or privately from the person,) his aiders and abettors 
are not excluded through the tenderness of the law, which hath 
determined that such statutes shall be taken literally. 

To which may be added, 

.5th. That a party convicted of an offence, from which clergy has 
not been taken away, can have that plea but once. 

2d. Consequences. 

After a party has been allowed the benefit of clergy, and has 
received the judgement of the law, (as formei'ly by branding, but now 
by fine, imprisonment and whipping) or pardon, he is discharged 
forever of that and all other clergyable felonies before committed, but 
not of felonies from which clergy is excluded; and he is restored to 
all his rights and credits, as if he never had been convicted. 4th B. 
C, 375. 



B I G A IVI Y . 

Definition. This term properly signifies a double marriage, or being twice 
married, but jt is universally used in the sense of polygamy, or the 
having a plurality of wives or husbands at once. 

By statute 1 J. 1, c. 11, P. L., it is enacted, that if any person or 
persons, being married, do at any time marry any person or persons, 
the former husband or wife being alive, that then every such offence 
shall be felony, and the person and persons so offending shall sufl^er 
death, as in cases of felony, and the party and parties, so offending, 
shall receive such and the like proceeding, trial, and execution in 
such county where such person or persons shall be apprehended, as if 



LAW OF MAGISTRATES. 85 

the offence had been committed in such county where such person or 
persons sha^l be taken or apprehended — of which he shall inquire: 

1st. What cases of seco^vD Makkiage are withix the statute. 
2d. Of the" coNSEauENCEs to the issue of such second mar. 

eiage. 
3d. Of the Punishment. 

1st. What cases of Second Marriage are ivithin the Statute. 
By the term of the statute, 2nd section, it is provided, that it shall 
not extend to any person or persons whose husband or wife shall jj„gj,gj|^ ^ 
remain continually beyond the seas, by the space of seven years ^''^^^®''^^"' 
together, or whose husband or wife shall absent himself or herself, >''^^''®- 
the one from the other, by the space of seven years, in any part within 
his Majesty's dominions, the one of them not knowing the other to be 
living within that time: and by the third section, persons divorced, or??''®°"^ , 

^ , divorced,&c. 

who were married before the age of consent, are excepted from the 
statute. In addition to these exceptions of the statute, it hath been 
ruled, that if the husband or wife be under sentence of imprisonment under 

' impiison- 

for life, the other may marry again, and such marriage will not bewntfor 
within the statute against bigamy. 4th B. C, 165, note 7. 

Concerning the exception of persons divorced, it may be necessary 
to remark, that the Legislature of South-Carolina has uniformly 
refused to grant a divorce in any case, and it seems to be the pre- 
vailing opinion, that the dissolution in another State of a marriage 
contract, entered into in South-Carolina, would not be regarded by the 
Courts of the latter State, if under their jurisdiction; and if a person, 
BO divorced, marry again, he would be held guilty of bigamy. See 
Carolina Law Journal. 

2d. Of the consequences to the issue of such Second Marriage. 

Where either party to a second marriage is guilty thereby of 
bigamy, the marriage is itself void, and the issue thereof" illegitimate; illegitimate, 
and even although a second marriage be Avithin the first three excep- 
tions of the statute, still it will be void in law, though neither party 
thereto be guilty of felony ; 4th B. C, 164. But in this State it hath 
been held, that the death of a party will be presumed, after an absence 
of seven years without the State, without having been heard from; 
and that the party deserted, is free to marry after that time, and the 
issue of such marriage are legitimate. Woods vs. Woods, 2 
Bay, 476. 



86 LAW OF MAGISTRATES. 

3d. Punishment. 
By the terms of the statute, "the person and persons so offending,, 
shall suffer death as in cases of felony:" so that clergy not being taken 
away by the express words of the statute, bigamy is lield to be a cler- 
gyable ofl^ence; and under the law of this State, before the Act of 
1833, was punished with branding, imprisonment, &c.; but now, that 
branding is wholly abolished, it is only punishable by fine and impri- 
sonment for the first offence. 



BRANDING. 

By the Act of 1836, 6th S. L., it is enacted, "that from and after 
Abolished. ^^^ passing of this act, the punishment by branding shall be abolished in 
all cases, afld in lieu thereof, in the cases of free white persons, pun- 
ishment by fine and imprisonment shall be substituted." 



BREAD. 

Every common baker, or other person, who shall make or bake 
for sale, or expose to sale any of the sorts of bread mentioned in the 
following table, shall fairly imprint or mark, or cause to be fairly 
imprinted or marked, on every loaf so by him or her made, or exposed 
to sale, the price of such loaf, together with the initial letters of the 
name of the baker thereof, whereby the said baker and price of such 
bread may be distinctly known; and shall make such bread agreeable 
to the weight in the following table, otherwise he (who shall be con- 
victed to the contrary, by the confession of the party, or by oath of 
one or more credible witnesses, before a justice of the peace in the 
county where the ofl^ence shall be committed,) shall for every such 
offence, forfeit the sum of twenty shillings, proclamation m'oney, to be 
levied by warrant under the justice's hands, and given to thp informer. 
A. A., No. 799. 

If any baker put into any bread by him sold, or exposed to sale, 
any mixture of other grain, further than what is absolutely necessary 
for the well-making or baking thereof, he shall, for every such offence, 
upon conviction before any justice trying and examining the same, 
forfeit all such bread so fraudulently mixed, for the use of the poor of 



LAW OF MAGISTRATES. 87 

the parish where the offence shall be comraitted, and also the sum of 
twenty shillings, proclamation money, for the use of the informer, to 
be recovered by warrant from the justice; provided the prosecutions 
for such convictions be commenced within three days next after the 
offence is committed. — lb. 

Any justice of the peace may, at all times in the day time, enter 
into any house, shop, stall, bake-house, ware-house, or out-house of 
or belonging to any baker, or seller of bread, and there search for, 
view, weigh and try all, or any of the bread Which shall there be 
found; and if any be found either wanting in the goodness of the 
materials whereof the same shall be made, or deficient in the baking, 
or wanting in the due weight, or not truly marked, or fraudulently 
mixed, then, and in every such case, any justice may seize such bread 
so found, and cause the same to be forthwith given and distributed to 
the poor of the parish where such seizure shall be made. And if any 
baker or seller of bread shall not suffer such search and seizure to be 
made, or resist the same, he shall, for every such offence, forfeit the 
sum of four pounds, proclamation money, for the use of the poor of 
the parish where the offence is committed, to be levied by a warrant 
under the justice's hands. — lb. 

But if any person convicted, of any of the offences before mentioned, 
think himself agirrieved, he may, within three days after such convic- 
tion, appeal in writing to any three justices of the peace for the county 
where such conviction shall be made, by whom the same shall be 
heard and finally determined, in ten days after such appeal; and if 
the person so appealing shall not make good his appeal, or prosecute 
it with effect, the justices shall award such costs as they shall think 
reasonable to the informer, and commit the offender to the common 
jail until he shall make payment of such costs, and also of the penalty 
adjudged on the conviction; the like reasonable costs shall be awarded 
to the appellant against the informer, if he does not duly support and 
make good his information. — lb. 

5. The City Council of Charleston has full power and authority to 
regulate from time to time the price and assize of bread. A. A. No. 
1342. 

1. Information of an undue mixture used in making of bread. 

District, > ss. 

Be it remembered, that this day of in the year A. A. 

yeoman, in his proper person exhibiteth to me, I. P. one of the justices 



88 LAW OF MAGISTRATES. 

assigned to keep the peace of the district aforesaid, a complaint and 
information, and thereby informeth me, that A. O., late of , in 

the district aforesaid, baker, on the day of , [here specify the 
time of the offence, that the prosecution may appear to be commenced 
in three days after the offence committed, according to the Act of 
Assembly in that case made and provided,] did put into and use, in 
the making of bread, to be sold, a preparation or mixture, in whic'h 
alum was an ingredient, contrary to the form of the Act of Assembly, 
in that case made and provided; whereby the said A. O., hath forfeited 
the sum of twenty shillings, proclamation money; and thereupon thra 
said A. I., prayeth the judgement of me the said justice in that behalf, 
and that he the said A. I., may have the said forfeiture, according to 
the form of the Act of Assembly in such case made and provided, and 
that the said A. O. may be summoned to answer the premises before 
me the said justice. 

2. Summons thereupon. 
Distinct. y ss. 

To A. B. constable of the District aforesaid. 

Whereas complaint and information hath been exhibited before me, 
I. P., one of the, justices of the peace for the said district, by A. I., 
yeoman, that A. O. late of , in the district aforesaid, baker, on the 
day of , in the year , did put into and use, in the baking 
of bread, to be sold, a preparation or mixture, in which alum was an 
ingredient, contrary to the form of the Act of Assembly in such case 
made and provided; these are therefore to require you, forthwith to 
summon the said A. O. to appear before me, at ,,on the day 
of , at the hour of in the forenoon of the same day, then and 
there to answer the said information: and be you then there to certify 
what you shall have done in the premises. Herein fail you not. 

Given under my hand and seal, the day of , in the year 

I. P. [l. s.] 

If the party shall not appear on such summons, or offer some rea- 
sonable excuse for his default, then, on oath made of the ofTence, by 
one witness, such justice shall issue his vJarrant (^mutatis mutandis) to 
apprehend the offender, and bring him before the said justice, to 
answer the said information. 

On the party's appearance, or if he do not appear, then on proof of 
the summons being given to him, or left at his usual place of abode, 
or if he cannot be apprehended by warrant as aforesaid, the justice 
may proceed to hear and determine the offence. 



LAW OF MAGISTRATES. 89 

3. The form of the eonviclion. 



District. 



Be it remembered, that on this day of in the year A. 

O. is convicted before me, I. P., one of the justices assigned to keep 
the peace in and for the district aforesaid, for putting into and using 
in the making of bread, to be sold, a preparation or mixture, in which 
alum was an ingredient ; and I do adjudge him to pay and forfeit for 
the same, the sum of •20s. proclamation money. Given under my 
hand and seal the day and year aforesaid. 

I. P. [l. s.] 

4. Warrant of distress on non-payment oj the penally. 

District. > ss. 

To A. B., Constable of the District aforesaid. 

Forasmuch as A. O., late of in the district aforesaid, baker, 

was on the day of duly convicted before me, I. P. Esq., one of 
the justices of the peace for the*aid district, by the oath of A. VV., 
a credible witness, for that he, the said A. O. , on the day of 
did put into and use in the making of bread, to be sold, a preparation 
or mixture, in which alum was an ingredient, against the form of the 
act of assembly in such case made and provided, by reason whereof 
I did adjudge, and have adjudged him to pay and forfeit for the said 
offence the sum of 20s. proclamation money; 

And whereas it appears to me,tliat the said sum, or any part thereof, 
is not yet paid; I do therefore hereby authorize and require j'ou, forth- 
with to make distress of the goods and chattels of him, the said A. O,, 
and also to cause the said goods, by you seized, to be appraised and 
sold; rendering the overplus to him, the said A. O. , after deducting 
the said sum of 20s. proclamation money, and also the costs and char- 
ges of the prosecution for the said offence, and of the said distress and 
sale; which costs and charges I do hereby ascertain et the sum of 
and the said sum of 20s. proclamation money, so forfeited as 
aforesaid, you are to pay to A. 1., yeoman, who informed me of the 
said offence, and prosecuted to conviction him, the said A. O., before 
me, for the same; and if sufficient distress cannot be had or found 
whereupon to levy the said sum of 20s. proclamation money as afore- 
said, you are hereby required to certify the same to me, together 
with the return of this precept. Herein fail you not. Given under 
my hand and seal, the day of in the year 

I. P. [l. s.] 
12 



90 LAW OF MAGISTRATES. 

5ih, Return of the want of distress endorsed upon the warrant. 

District. > ss. 

I, A. B., constable in the district aforesaid, do hereby certify I. P. 
ICsquire, one of the justices of the peace for the said district, that by 
virtue of this warrant, I have made diligent search for the goods and 
chattels of the within mentioned A. O., and that I can find no suffi- 
cient goods and chattels of hlnn, the said A. O., whereon to levy the 
within mentioned sum of 20s. proclamation money. Witness my 
hand the day of in the year A. B. 

Sworn before me, the said justice, the day and year aforesaid. 

I. P. 



BRIBERY. 

[See also Embracery and Offices.] 

1st. Defixitiox. 

2d. Prevention. 

3d. Its Effects. 

4th. Punishment. 

5th. Mode of Procedure. 

1st. Definition. 

Bribery is the receiving or offering any undue reward by or to any 
person whatsoever, whose ordinary profession or business relates to 
the administration of public justice, in order to influence his behaviour. 
And it seems that this oflTence will be committed by any person in an 
official situation, who shall corruptly use the power or interest of his 
place for reward or promises; also in giving or taking rewards for 
offices of a public nature, or in giving rewards, or making promises, 
to secure voles at an election. 1st Russel, 156. 

2d. Prevention, • 

In addition to the punishment of bribery by the common and statute 
law, the legislature of South-Carolina has prescribed for the preven- 
"'■• tion thereof, the following oath, to be taken by each district officer 

before entering upon the duties of his office, viz: 

I, A. P)., swear or affirm as the case may be, that I am under no 
promise in honor or law to share the profits of the office to which I 



Oathofoffi- 



LAW OF MAGISTRATES. 91 

have been elected or appointed, (as (he case may be,) and I will not 
directly or indirectly, sell or dispose of said office, or the profits thereof, 
but will resign or continue to discharge the duties thereof during the 
period fixed by law, if I so long live, so help me God. 

Sd. Effect of Bribery. 
In addition to the punishment inflicted upon a person guilty of 
bribery, he is also subject to be deprived of any undue advantage-,... 

•' ' •> ' •' ' * Vitiates 

which he may gain thereby, whether it be the getting a verdict in verdict. 

his favour, in wliich case it may be set aside as fraudulent, or whether 

it be the procuring thereby his election to any office; for it hath been 

held that bribery rendered an election void, as early as 13th E I iz., Makes void 

• _ an election. 

when one Thomas Louge, (being a simple man, and of small capacity, 
to serve in patliament) acknowledged that he had given the returning 
officer and others of the borough for which he was chosen, four 
pounds, to be returned as a member, and was for that premium elected; 
by this offence the borough was amerced, the member was removed, 
and the officer fined and imprisoned, i B. C, 179. 

Atli. Punishment. 

Besides the punishment imposed by statute, bribery is a crime at 
common law for which the parties may be indicted and punished by 
fine and imprisonment. 4 Doug., 29i. 

In inferior, judicial or ministerial officers, it is punishable by fine 
and imprisonment, which also may be inflicted on those who offer a 
bribe, though it be not taken; 3 Just., 147. In a judge, it was for- 
merly looked upon as so heinous an offence, that it was sometimes 
punished as high treason ; and it is at this day punishable with forfei- 
ture of office, fine and imprisonment. — Ibid, 146. 

Acts of Congress. 
By Act of Congress of 1790, 1st Story's L. U. S., 87; if any person Bribery of 
shall directly or indirectly give any sum or sums of money, or any " ^^^* 
other bribe, present or reward, or any promise, contract, obligation 
or security, for the payment or delivery of any money, present or 
reward, or any other thing to obtain or procure the opinion, judgement, 
or decree of any judge or judges of the United States, in any suit 
controversy, matter or cause depending before him or them, and 
shall be convicted thereof, such per.-on or persons so giving, promising, 
contracting, or securing to be given, paid, or delivered, any sum or 
sums of money, present, or reward, or any other bribe as aforesaid, 
and the judge or judges who shall in any wise receive or accept the 



92 LAW OF MAGISTRATES. 

same, on conviction, thereof shall be fined and imprisoned at the 
discretion ot'the Court, and shall forever be disqualified to hold any 
office of iionor, profit, or trust, under the United States, 
offlcersof And by the Act of 1799, 1st S. L. U. S., 653; if any officer of the 
' customs shall directly or indirectly take or receive any bribe, reward, 
or recompense, lor conniving, or shall connive at any false entry of 
any ship or vessel, or of any goods, wares or merchandize, and shall 
be convicted thereof, every such officer or other person shall forfeit 
and pay a sura not less than two hundred, nor more than two thousand 
dollars for each offence. And said penalty shall be sued for and 
recovered, with costs of suit, in the name of the United States of 
America, in any Court competent to try the same; and the trial of 
any fact which may be put in issue, shall be within the judicial district 
in which such penalty shall hav3 accrued, and the collector is enjoined 
to cause suits for the same, to be commenced without delay, and 
prosecuted to effect. 

Act of Assembly. 
By Act of 1824, 6th S. L., 244, if any person shall directly or indi- 
rectly give or engage to pay any sum of money or other valuable 
consideration to another, in order to induce such other person to 
procure for him by his interest, influence, or any other means what- 
soever, any office or place of trust within this State, or shall offer, 
give, promise or bestow, any reward by meat, drink or otherwise, 
Punishment for the aforesaid purpose, and be thereof convicted, he shall forfeit the 
for office.^ sum of not less than one, nor more than five hundred dollars, and 

suffer imprisonment for a term not exceeding six months. 
Receiving If any person shall receive of another any sum of money or reward 
of meat, drink or other valuable consideration, for procuring or assist. 
ing to procure, any office or place of trust in this Slate, for any other 
person whatever, and be thereof convicted, he shall forfeit the sum of 
not more than one hundred dollars, and suffer imprisonment at the 
discretion of the Court; and if such offender be in any office, he shall 
be disabled from holding the same. 
Informer ^^ either of the parties offending as aforesaid, shall give information 

P?naUy!" against the other offending party, and shall duly prosecute such infor- 
mation, such informer shall be free from the penalty. 

5ih. Mode of Procedure. 

Indictment. The proceeding for bribery, at common law, is by indictment, and 
though no method of proceeding is proscribed by the Acts of Congress 



LAW OF MAGISTRATES. 93 

and statutes of the State, yet as they make no new ctfence, but only 
add punishment to an offence at common law, by a well settled rule 
of law; 2 Haw., 302, the proceedinfjs on said acts is by indict- 
ment, except in the case of officers of the (Customs, where, according 
to the act, the remedy is by action in the name of the United States, By action. 
in any Court of competent jurisdiction. 

Of the Affidavit. 
In the case, the oflTence charged be at common law, for ofl^ering a 
bribe to a judge, or other person occupying official station, or for 
receiving such bribe by one in such station, the affidavit should set 
forth all the jiarticulars, to-wit: the station of the officer, the nature 
of the case pending before him, and the time, place and manner of 
offering or receiving the bribe, together with the nature of the thing 
offered. If it fall within either of thfr foregoing statutes, then the 
circumstances should be set forth in the affidavit, and nearly as pos- 
sible in the words of the statute, stating the nature of the case pending, 
or the oflSce sought to be procured, as also, the date, time and place 
of the offering of the bribe and of the election. 

Form of Warrant. 

State of South Carolina. > 
District. ^ 
Bjj , Esq., magistrate, in and for the said State. 

To any lawful Constable. 
Whereas, complaint upon oath has been made unto me by A. B., 
that C. D. did on the day of (Here state the matter charged, 
following the affidavit.) 

These are, therefore, to command you to apprehend the said C. D., 
and to bring him before me, to be dealt with according to law. 

Given under my hand and seal, at , this day of , one 

thousand eight hundred and 

E. F., [l. s.] 

Magistrate. 

The State op Soxtth-Cakolixa. 

Be it remembered, that on the day of in the year of our 

Lord one thousand eight hundred and personally appeared C. D., 
and (name of surety or sureties,) before me, magistrate in and 

for the said State, who acknowledged themselves indebted to the 
State of South-Carolina ; that is to say, the said C, D. in the sum of 
(the highest amount of penalty for the offence, adding thereto for the 



LAW OF MAGISTRATES. 

imprisonment) dollars: and the said (surety or sureties, if one, 

in the same amount, and if two, then each in half the amount) 
dollars, like money, to be levied of their separate lands and tenements, 
goods and chattels, respectively, to and for the use of the said State, 
if the above mentioned C. D. shall fail in the performing the condition 
underwritten. 

The condition of this recognizance is such, that if the said C. D. 
shall personally appear before the Court of General Sessions, to be 
holden at the usual place of judicature, in , on the Monday 

in , then and there to answer to a bill of indictment to be prefer- 

red against (him or her) for (here itate the charge fully as in the 
warrant.) and to do and receive what shall be enjoined by the Court, 
and not to depart the Court without license; and in the mean time, 
that the said C. D. do. keep the peace of the State, and be of good 
behaviour towards all the citizens thereof, and especially towards the 
said , then this recognizance to be null and void, or else to 

remain in full force and virtue. 

Taken and acknowledged the day and year above written, before me. 
E. F., CD. [l. §.] 

Magistrate. Surety, [l. s.] 

Surety, [l. s.] 

If the charge be for an offence against the act of Congress, then 
insert ("the Lnited States of America") wherever the name "South- 
Carolina" is used in the above precedent. 



BURGLARY. 

It is laid down in the more ancient authorities, that the offence of 
burglary may be committed by the felonious breaking and entering of 
a church, and the walls or gates of a town, in time of peace, as well 
as by the felonious breaking and entering of a private house. But 
the more material enquiry, at the present day, relates to the breaking 
and entering of the mansion houses of individuals; and this species ot 
offence may be well described as the breaking and entering the man- 
sion house of another in the night, with intent to commit some felony 
within the same, whether such felony be committed or not. 2 
Russel, p. 1. 



LAW OF MAGISTRATES. 95 

1st. The Breaking and Entering. 

2d. Of the Mansion House. 

3d. The Time. 

4th. The Intent. 

5th. Of the Punishment. 

6th:. Reward for convicting a Burglar. 

7th. Precedents. 

Isi. The Breaking and Entry. 

It is now well settled that there must be both a breaking and an RreaWng 
entry, and it is not every entrance in the nature of a trespass, which ^c"iuai.%r 
will be sufficient to satisfy the language of (lie law. Thus, if a ^lan *^'"'^""*^''^®' 
enter through a door or window, which he finds open, or a hole which 
was there before, and steal goods, he will not be guilty of burglary; 
but there must be an actual breaking, requiring more or less force, or 
a breaking by construction of law, as where an entrance is obtained 
by threats, fraud or conspiracy. 2 Russ., p. 2. 

An actual breaking may be by making a hole in the wall, forcing ^^^i 
open the door, picking the lock, or opening it with a false key, break- breaking, 
ing or taking out the window glass, and even lifting the latch, where 
the door is not otherwise fastened, or turning the key which is in the 
lock, or the unloosing the fastening which the owner has provided, 
will amount to a breaking. — lb. 

AFso, the gettingf down or into the chimney of a house, is a sufficient „ . . , 

^ o o J ^ Getting dnwtt 

breaking, though ihe party does not enter any of the rooms of the ihe chimney, 
house. — lb. 

It should also be observed; that the breaking requisite to constitute 

" ^ _ Breaking an 

a burglary, is not confined to the external parts of the house, but if iimec door. 
the offender enter a house by means of a way which he has found 
open, and afterwards break an inner door, it is burglary. — lb. 

If one or more, with felonious intent, "ain entrance into a house 

, Breaking by 

by threats of violence, or by raising hue and cry, or by pretence of construction 
legal process, or by pretence of business with the occupant, or taking 
lodgings, or by deluding the servant in charge, or by conspiracy with 
a servant who opens the door, such arts will amount to a constructive 
breaking, sufficient to constitute burglary, and in the latter case, the 
servant who opens will also be held guilty. — lb. 

With respect to the entering, necessary to constitute burglary, it is The entry. 
agreed that any, the least entry, either with the whole, or any part of 

♦ u 1 J u J r -1 • • . J ''y P""ing 

the uody, hand or toot, or with an mstrurhent or weapon, introduced in the body. 
for the purpose of committing a felony, will be sufficient. Thus, where 



96 LAW OF MAGISTRATES. 

a person in the night time, cut a hole in the window shutters of a shop 
which was part of a dwelling-house, and putting in his hand, took out 
watches, it was holden to be burglary. — lb. 
Bj-aninstru- So, if a thief breaks the window of a house in the night time, with 

ment. . i i • i i i • i i 

intent to steal, and puts in a hook or other engine to reach out goods* 

or puts a pistol in at the window with intent to kill, this is burglary, 

though his hand be not within the window. 1 Hale, .553. 

Breaking and Though there must be both a breaking and entry to constitute 

no/be"tiie burglary, yet tiiey need not both be at the same time, or on the same 

eame nig . jjigi,}. a^jj jj^g entry of one is the act of all present, aiding and abetting. 

2 Russ., 12. 

■2d. Of the House. 

The breaking and entry must be of a mansion house, which includes 
What shall ^Dy home, for the dwelling and habitation of man; and a portion of a 
efed°anian- building may come under this description, as a set of chambers in a 
sion ouse. (,Q]]pgg qj. jp^^ qj. g^ j^jfj over a coach house and stables. — Ibid. 

Burglary however, cannot be committed by breaking into an 

Not a tent or , i i i i i i ' i i i • 

booth. enclosed ground, or booth or tent, though the owner may lodge therein, 

for the law regards thus highly nothing but permanent edifices; and 
the lodging of the owner in so frail a tenement, no more makes it 
burglary to break it open, than it would be to uncover a tilted wagon 
in the same circumstances — Ibid. 

The mansion or dwelling house in which burglary might be com- 
store'ofout- rnitted, was formerly held to include out-houses, such as stables, barns, 
°'"'^' &c., though not under the same roof, or joining to the dwelling. 

But in the case of the State vs. Ginns, 1 N. & M'C, 583, it was 
held that it was not burglary to break and enter a store in the night 
time, in which no one sleeps, and which is not connected with the 
dwelling, except by a fence; and in the same case, the judges inclined 
to the opinion, that a house to be parcel of the mansion house, must be 
somehow connected with, or contributit)g to it, as a kitchen, smoke- 
How far it house, or other usual appendage of a dwelling house. It is well 
inhabited settled, that unless the owner has taken possession of the house by 
inhabiting it personally or by some of his family, it will not have 
become his dwelling in the meaning of the word as applied to bur- 
glary, and this has been held, even in cases where the owner was 
about to occupy a house and placed persons not a part of his family in 
it to protect it. 2 Russ., 16, 
Not affected But if the owner occupy the house with any part of his family or 

by temporal u j r j 

absence. servants, or he had dwelt there, and was only temporarily absent, 
with intention of returning, it will be regarded as his mansion-house. 
Ibid. 



LAW OF MAGISTRATES. 97 

3d, Of the time. 

To constitute burglary, the offence must be in the night; and it is Must be in 
settled, that if there be daylight or twilight enough begun or left^'*^"'^"* 
whereby to distinguish the countenance of a person, it is no burglary. 
But this does not extend to moonlight. 1 Hale, 550. 

We have before said, that the breaking and entry need not be in 
the same night, but that a breaking one night, and an entry another 
will be sufficient; but whether the breaking and entry must both be 
in the night time, and whether a breaking in the day and an entry at 
night be not sufficient, is yet a question. 

■ ^th. Of the intent. 
The breaking and entering must ^be with a felonious intent, or it Must be 

" felonious 

will not be burglary; but it is not necessary that such intent be exe- 
cuted. If the intention of the entry be a mere trespass, as to i)eat a 
person in the house, such entry will not be burglary. But if a felony 
be actually committed, it will generally be held evidence of an inten- 
tion to commit it; and it makes no difference whether the felony 
committed, be a felony at common law, or by statute. 2 Russ , 83. 

bill. Punishment. 

By the 18 El., c. 7, and 3 W., c, 9, benefit of clergy is taken 
away, in the cases of burglary, both from the principal and the 
accessary before ; but in all cases of burglary, accessaries after must 
have their clergy. 2 H. H., 364. 1 Haw , 357, 358. 

Such being the punishment, a party charged with the offence is not 
bailable by a magistrate. 

Qth. Reward for convicting a hurgJar. 

It may be observed, in the first place, that it is provided by tlie 24 
H. 8, c. 5; that there shall be no forfeiture of lands or goods for killing 
any person that attempts to commit burglary. 

But besides this indulgence to a person killing such an offender in 
defence of his house, there are special advantages and rewards, for 
apprehending and convicting him, in due course of law, which are as 
follows : 

Every person, who shall apprehend any while per>on guilty of 
burglary, or the felonious breaking and entering of any house in the 
day time, and prosecute him until he be convicted of such burglary or 
felony, shall have ten pounds, proclamation money, within one month Ten pounds, 
after such conviction, to be paid by the treasurer of this State out of 
any monies in the treasury, to the person apprehending and prosecu. 
13 



98 LAW OF MAGISTRATES. 

ting the said offender, he rendering a certificate to the said treasurer, 
under the hand of the judge before whom such felon shall be convicted, 
for such burglary or felony, certifying the conviction of such felon for 
the said offence, and also that such felon was taken by the person 
claiming the said reward: and in case any dispute shall arise between 
the persons so apprehending the said felons, touching their right to 
the said reward, the said judge so certifying as aforesaid, shall, by the 
certificate, direct the said reward to be paid to the parties claiming 
the same, in such proportions as to the said judge shall seem just. A. 
A., No. 1096. 

In case any person having a wife or child living, shall be killed, 
maimed, or disabled from labour, by any such burglar or house- 
breaker, in endeavouring to apprehend, or in making pursuit after 
him, such person, in case he shall be maimed or disabled, shall be 
entitled to the same rewards as are allowed by the rtiilitia act to poor 
freemen and white servants, maimed or disabled in the public service; 
and in case such pefsons shall be killed, then the wives and children 
of such persons shall be entitled to the same rewards as the wives 
and children of poor freemen and white servants, killed in the public 
service, are entitled unto by virtue of the said act, upon a certificate 
under the hands and seals of two of the next justices of the peace, of 
such person being so killed, maimed, or disabled from labour; which 
certificate, the said justices, upon sufficient proof before them made, 
are immediately required to give, without fee or reward. — lb. 

The judge before whom such felons, and house-breakers, and 
receivers of stolen goods, knowing them to be su(jh, shall be convicted, 
shall determine and settle the right, and shares of such respective 
persons, who, by virtue of this act, shall be entitled to the certificate 
and reward, herein directed to be given; and shall also (being there- 
unto required,) cause to be made out and delivered, the said certificate, 
without fee or reward, to such person entitled thereunto, before the 
end of such sessions wherein such conviction shall be had. — lb. 

T//i. Precedents. 

1st. Affidavit, requisites of. — The foregoing summary of the law 
of burglary may be sufficient for the guidance of the magistrate, in 
such cases as he may be called on to try. But as questions of own- 
ership may arise in the Court of Sessions, it were better that the 
rnagistrate drawing the affidavit should observe the following direc- 
tion : 1st. State all the circumstances of the breaking and entry, 
whether they seem to be pertinent or not. 2d. Set forth the full 



LAW OF MAGISTRATES. 99 

names of the owner and occupant of the house, and whether the 
occupant held as tenant, or as the agent or servant of the owner. 
State whose and what goods were stolen; as a party may be acquitted 
of the burglary, and convicted of the larceny. 

2d. Warrant to apprehend a burglar. 
District. > ss. 

To A. B. constable of the District aforesaid. 
Forasmuch as A. I., of in the district of yeoman, hath this 
day made information and complaint, upon oath before me, I. P. Es- 
quire, one of the justices appointed to keep the peace for the said 
district, that yesterday in the night, the dwelling house of him, the 
said A. I., at aforesaid, in the district aforesaid, was feloniously 

and burglariously broken open, and one silver tankard, of the value 
of five pounds, of the goods and chattels of him, the said A. I., felo- 
niously and burglariously was stolen, taken, and carried away from 
thence : and that he hath just cause to suspect that A. O., late of 
in the district of labourer, the said felony and burglary did 

commit: these are therefore to command you, that immediately upon 
sight hereof, you do apprehend the said A. O. , and bring him before 
me, to answer the premises, and to be further dealt withal, according 
to law. Herein fail you not. Given under my hand and seal, the 
day of in the year [l. s.] 



BURNING. 

[See Arson and Malicious Mischief.] 

Under this head are included certain statutory offences not included 
under the head of arson, which are felonies or misdemeanors. 

1. Felonies. 

By 22 and 23 C. 2, c. 7, S. L. 2, 521; if any person in the night 
time, maliciously, unlawfully, and willingly burn, or cause to be 
burned or destroyed, any ricks or stacks of corn, hay, or grain, barns, Bumingcorn 
or other houses, or buildings, or kilns, he shall suffer as in case of 
felony. 

By 37 H. 8, c. 6; if any person or persons, maliciously, unlaw- Burning or 
fully, willingly and secretly, burn, or cause to be burned, cut, or frames, 
caused to be cut or destroyed, any frame, or frames of timber, of any 



100 LAW OF MAGISTRATES. 

other person or persons, made and prepared for, or towards the making 
of any house, or houses, so that the same shall not be able for the 
purpose for which it was prepared ; that then every such act, and 
acts so to be committed, perpetrated, and done by any person or per- 
sons, shall be deemed and adjudged felony; and, by this act, it ig 
provided, that the offender shall have and suffer pains of death; but 
as clergy is not expressly taken away, it follows that he shall have 
his clergy. 
Ships. If any master, mariner, or other officer belonging to a ship, shall 

wilfully cast away, burn, or otherwise destroy the ship unto which he 
belongelh, or procure the same to be done, to the prejudice of the 
owner or owners thereof, or of any merchant that shall loan goods 
thereon, he shall suffer death as a felon. 1 Ann. S. 2, c. 9, P. L., 93, 

Misdemeanors. 

coauj'e^tc. If any person wilfully, maliciously and unlawfully burn or cause to 
be burned, any wagon or cart, loaded with coals or other merchan- 
dize, or any heaps of wood, prepared, cut and felled, for the making of 
coals, billets or falwood, such person shall not only lose and forfeit 
unto the party grieved, treble damages, to be recovered by trespass, 
but shall also lose and forfeit, for every such offence, £10 sterling, in 
the name of a fine. 37 H. 8, c. 6, 2 S. L., 478. 

wood's!^ ^^ person shall put fire to or burn any grass, brush, or other com- 

bustible matter, so as thereby the woods, fields, lands, or marshes, be 
set on fire; nor cause the same to be done, nor be thereunto aiding 
or assisting, under the penalty of £5, half to the informer, the other 
half to the use of the poor of the parish or county in which the offence 
shall be committed: and in default of payment, he shall suffer impri- 
sonment, not exceeding two months: and shall be liable to the action 
of any person who shall have suffered damage thereby. Provided, 
that no person shall be prevented from firing woods, fields, lands or 
marshes,* within his own bounds, so that he suffer not the fire to get 
without the bounds of his lands, and injure the woods, fence or grass 
of his neighbor: and where any offence shall be committed by any 
servant or slave, without the direction, consent or knowledge of his 
master, he shall receive not exceeding thirty-nine stripes, at the 
discretion of the justice and freeholders before whom he shall be 
convicted, unless his master shall pay the damage which the owner 
of the lands shall sustain, and costs ofsuit. A. A., No. 1586. 

Burning If any person shall maliciously, unlawfully and wilfully burn or 

In day .'^''^'' causc to be bumed or destroyed, any ricks or stacks of corn or grain. 



LAW OF MAGISTRATES. 101 

barn or other house, or other buildings, or kiln, in the day time, such 
person shall" be adjudged guilty of a misdemeanor, and liable to be 
fined and imprisoned at the discretion of the Court. 6th S. L., 368. 



CARDS. 

(See Gaming.) 



CARRIERS. 

All persons carrying goods for hire, as masters and owners of ships, who are. 
lightermen, stage-coachmeu, and the like, come under the denomi- 
nation of common carriers, and are chargeable, on the general custom 
of the realm, for their faults or miscarriages. 1 Bac. Abr., 543. 

1st. His Duties and Responsibilities. 

A carrier shall not evade the law, by refusing to carry goods at the jjo„„d („ 
prices limited; for if a common carrier, who is offered his hire, and ""^" 
who hath convenience, refuses to carry goods, he is liable to an action, 
in the same manner as an inn-keeper who refuses to entertain a guest, 
or a smith who refuses to shoe a horse. 1 Bac. Abr., 344. 

So an action will lie against a common ferryman, who refuseth to 
carry passengers. — lb. 

Where goods are to be delivered to a carrier, and he is robbed of 
them, he shall be charged, and answer for them, by reason of the Liable for 
hire: and this was at the common law, before the hundred was " ' 
answerable over to him; because such robbery might be, by consent 
and combination, carried on in such a manner that no proof could be 
had of it. 1 Salk., 143. 

And although it may be thought a hard case, that a poor carrier, 
who is robbed on the road, without any manner of default in him, Jh'ouih 
should be answerable for all the goods he takes; yet the inconvenience ^°^^'^^- 
would be far more intolerable, if he were not so, for it would be in his 
power to combine with robbers, or to pretend a robbery, or some 
other accident, without a possibility of remedy to the party; and the 
law will not expose him to so great a temptation, but he must be 
honest at his peril. 12 Mod., 482. 



LAW OF MAGISTRATES. 



And generally, if a man delivers goods to a common carrier, to 
carry to a certain place, if he loses or damages them, then an action 
upon the case lies against him; for by the custom of the realm, he 
ought to carry them safely. 1 Bac. Abr., 343. 

And if he be a common carrier, though there be no agreement, or 
rate settled, or promise of payment, yet he shall recover his hire on a 
quantum meruit, and therefore shall be liable for loss and damages. — lb. 

Also, if a person, who is no common carrier, takes upon himself to 
carry my goods, though I promise him no reward, yet, if my goods are 
lost or damaged by his default, I shall have an action against him. — lb. 

For the ve)-y taking of the goods is a general consideration, though* 
he be not a common carrier: and the acceptance of the goods makes 
him liable. Shaw, 104. 

A delivery to the carrier's servant, is a deliver} to the carrier; and 
if goods are delivered to a carrier's porter and lost, an action will lie 
against the car'rier. Read, Car. 

If a box is delivered generally to a carrier, and he accepts it, he is 
answerable, though the party did not tell him there is money in it; but 
if the carrier asks, and the other says no, or if he accepts it condi- 
tionally, provided there is no money in it, in either of these cases, the 
carrier is not liable. Str. , 145. 

If a man delivers a box to a carrier to carry, and he asks Avhatis in 
it, and a man tells him a book and tobacco, (as the case was) and in 
truth there is one hundred pounds besides; yet, if the carrier is robbed, 
he shall answer for the money; for the other was not bound to tell 
him all the particulars in the box, audit was the business of the car- 
rier to have made a special acceptance. Bac. Abr., 345. 

E. 1 An. Skinner and Upshaw. The plaintiff brought an action 
of trover against the defendant, who was a common carrier, for goods 
delivered to him to carry. On not guilty pleaded, the defendant gave 
in evidence, that he offered to deliver the goods to the plaintiff if he 
would pay him his hire; but that the plaintiff refused, and therefore 
he retained them. And it was ruled by Holt, chief justice, at Guild- 
hall, (before whom the causewas tried) that a carrier may retain the 
goods for his hire, and on direction, the defendant had a verdict given 
for him. L. Raym., 752. 

And even if the goods be stolen goods, yet the right owner shall 
not have them without paying for the carriasfe: for the carrier being 
obliged to receive and carry the goods, the law will not deprive him 
of the remedy for the reward due for the carriage. — lb., 166. 



LAW OF MAGISTRATES. 103 

2d. Of Larceny of Goods, delivered to a Carrier. 

Ii hath been holden, that a carrier embezzling goods, which he has 
received to carry to a certain place, is not guilty of felony, because 
there was not a felonious taking; but is liable only to a civil action. 
1 Haw., 89, 90. 

But it hath been resolved, that if a carrier opeh a pack, and take 
out part of the goods, with intent to steal it, he may be guilty of felony; When felony 
in, which case it may be said, not only that such possession of a part 
distinct from the whole was gained by wrong, and not delivered by the 
owner; but also that it was obtained basely, fraudulently, and clan- 
destinely, in hopes to prevent its being discovered at all, or fixed upon 
any one when discovered. 1 Haw., 90. 

Also, it seems clear, thai if a carrier, after he has brought the 
goods to the place appointed, lake them away again, secretly, vvith 
intent to steal them, he is guilty of felony; because the possession 
which he received from the owner being determined, his second taking 
is in ail respects the same as if he were a mere stranger. 1 Haw., 90. 

Also, it hath been resolved, if goods be delivered to a carrier, to be 
carried to a certain place, and he carries them to another place, and 
disposes of them to his own use, that this is felony; because this 
declareth, that his intention originally was not to take the goods upon 
the agreement and contract of the party, but only with a design of 
stealing them. Kelynge, 82. 

When goods are stolen from the carrier, he may prefer an indict- stolen by 

ment against the felon, as for his own goods; for though he has not the ^°°^^'^''* 

absolute property, yet he has such a possessory property, that he may 

maintain an action of trespass against any one who takes them from 

him, and so may indict a thief for taking them; and the indictment 

were good also if it had been brought by the real owner. Kelynge, 39. 

And there is a special case, wherein it is said, that a man may „ 

r ' ' •'By owner. 

commit larceny by stealing his own goods, delivered to the carriers, 
with intent to make him answer for them; for the carrier had a special 
kind of property in the goods, in respect whereof, if a stranger had 
stolen them, he might have been indicted generally, as having stolen 
the said carrier's goods; and the injury is altogether as great, and the 
fraud as base, when they are taken away by the very owner. 1 
Haw., 94. 



104 LAW OF MAGISTRATES. 

CATTLE. 

1st. Of stealing. 

Any person who shall he convicted of stealing any bull, cow, ox, 
steer or calf, shall pay lOZ. for each and every bull, cow, &c., for 
stealing of which he may be convicted; and if not able to pay said 
fine, he shall be publicly whipped, not exceeding thirty-nine stripes 
on the bare back : and for the second offence, shall be publicly 
whipped, not exceeding fifty stripes, on the bare back. A. A., No. 
1577. 

The commissioners of the markets in Charleston, are required to 
compel butchers and others, to produce to the clerks of the markets in 
Charleston, the hides and ears of all neat cattle, of whatsoever descrip- 
tion or age, brought for sale to the said markets; the said ears to be 
immediately destroyed by the clerk, to whom they may be produced, 
who shall be entitled to demand and receive from all butchers and 
others, bringing the same to market, the sum of four cents, as a com- 
pensation for his keeping a regular account, in a book, of the brands 
and marks of such cattle, and of the names of the parties producing 
them. Any butcher, or other person, who shall neglect, or refuse to 
comply with the terms prescribed by this act, shall forfeit and pay the 
sum often dollars for every such offence, to be recovered in a sum- 
mary manner, before the court of wardens, in the said city, to be 
applied by them to the use and berefit of the orphan-house in the 
same. A. A., 1796. 

If any person shall be found guilty of stealing any sheep, goats or 

hogs, he shall pay 51. f(:)r each sheep, &;c., so stolen; and for non- 

.payment be publicly M'hipped, not exceeding thirty. nine stripes, on the 

bare back; and for the second offence, he shall be whipped publickly, 

not exceeding fifty stripes on the bare back. — lb. 

3(Z. Of lillijig, maiming, disfguring, marking, <^c. 
. By the 22 and 23 C. 2, c. 7; if any person shall, in the nighttime, 

nig'"'' maliciously, unlawfully, and willingly kill or destroy any horses, sheep, 

or other cattle, he shall be guilty of felony, but without corruption of 
blood, or loss of dower, and may be transported to avoid execution. 

And if any person shall, in the night time, maliciously, unlawfully, 
and willingly maim, wound, or otherwise hurt any horses, sheep, or 
other cattle, whereby the same shall not be killed, or utterly destroyed, 
he shall forfeit treble damages by action of trespass, or upon the 
case. 



Maiming. 



LAW OF MAGISTRATES. 105 

And three justices [1 Q.] may inquire by a jury and witnesses ; Three justi- 
and may issue warrants for summoning jurors ; and for apprehending 
persons suspected, and take their examinations ; and cause witnesses 
to come before them to give information on oath, so as no person to 
be examined, shall be proceeded against for any offence concerning 
which he is examined as a witness, and shall make a true discovery; 
and if such witness, being summoned, refuse to appear, they may 
submit him to be examined on oath. 

If any person shall be convicted of wilfyll}' and knowingly marking, Disfiguring, 
branding, or disfiguring any horse, mare, gelding, colt, filley, ass, 
mule, bull, cow, steer, ox or, calf, of^iny other person, he shall for 
each horse, mare, &c., of which he shall or may be convicted of 
branding or disfiguring as aforesaid, pay £20, and on non-payment, 
be publicly whipped, not exceeding thirty nine stripes, on the bare 
back; and for a second offence, he shall pay £40, and on non-pay- 
ment, be whipped, not exceeding fifty stripes, on the bare back. A. 
A., No. 1577. 

If any person shall be convicted of wilfully and knowingly marking, 
branding or disfiguring any sheep, goat or hog, belonging to any 
other person, he shall, for each and every sheep, &c. so branded or 
disfigured, pay £5, and on non-payment, be publicly whipped, not 
exceeding thirty-nine stripes, on the bare back ; and for the second 
offence, shall pay £iO for eoch sheep ho killed, branded or disfigured; 
and in case of non-payment, be publicly whipped, not exceeding fifty 
stripes, on the bare back. — lb. 

No slave shall brand or mark any horse, mare, gelding, colt, filley, By slaves. 
ass, mule, bull, cow, steer, ox, calf, sheep, goat or hog, but in the 
presence, and by the direction of some white person, under the 
penalty of being whipped, not exceeding fifty stripes, by order of 
any one or more of the justices of the peace of the county, or parish, 
before whom such offence shall be proved, by the evidence of any 
white person, or slave. — lb. 

All witnesses duly subpoenaed, or bound over in recognizance to vvitnesses. 
give evidence against any of the offenders aforesaid, and who do 
attend, shall be entitled to the same allowance as witnesses attending 
the common pleas: which said allowance shall be defrayed out of 
the above fines; and in defect thereof, out of any other fines that may 
be in the hands of the clerk, where such offenders are tried. — lb. 



Sd. Of damage by or to. wandering 

If a man find the beasts of a stranger wandering in his grounds, grounds. 



106 



LAW OF MAGISTRATES. 



Breakins 
iiuo a field. 



May be 
Eeized. 



Owner to 
pay. 



Second 
breaking. 



doinn; him hurt or damage, he may distrain them until satisfaction be 
made him of the injury he has thereby sustained. 3 B. C, 7. 

And by the Act of 1827, 6lh S. L., 332, if any horses, mules, 
cattle, hogs, sheep or goats, shall break in to any field, enclosed with 
a lawful fence, according to the provisions of the said afct, in which 
shall be growing or ungathered an^ grain, cotton, or vegetable pro- 
duction, raised for market or domestic consumption, it shall be lawful 
for the owner of said field, to seize such horses, mules, &c. , and to 
keep them confined, until he shall have notified, within twenty.four 
hours after such seizure, the owner, or his or her agent, or overseer, 
who shall be bound to the owner of such field, fifty cents per head 
fjr every horse or mule, and twent^'-five cents per head for cattle, 
&c., before he or she shall be entitled to have the same delivered up 
tu him or her; and for a second breaking Avithin one month, the 
owner shall be liable to all damages sustained by the person injured, 
in addition to the fine aforesaid, to be recovered by action of trespass 
in the Court of Common Pleas; and in every such case the plaintiff 
shall be entitled to full costs, if the verdict or decree shall exceed four 
dollars. 

If any person, whose fields are not enclosed by a lawful fence, shall 
kill, wound, maim, chase, worry, or in any manner injure any horses, 
&c , which shall be found in such field, whether cultivated or not, 
or shall cause, or procure the same to be done by any other person, 
whether a slave or a freeman, such person, so offending, shall be 
liable to an action of trespass; and the plaintiff shall recover full 
satisfaction for the injury, with costs, if the verdict exceed four dol- 
lars. 6thS. L.,332. 

If any slave shall kill, maim, wound, or injure any horse, mule, 
&c., not belonging to his owner, in any cultivated or uncultivated 
field, not enclosed by a lawful fence, he or she shall be liable to be 
apprehended; and on conviction by a magistrate and two freeholders, 
shall be punished by whipping, not exceeding thirty-nine lashes. — lb. 



LAW OF MAGISTRATES. 107 



CAUSES, SMALL AND MEAN. 

1st. Op the extent of Magistrate's jurisdiction in. 

2d. Of the Summons. 

3d. Of compelling the attendance of Witnesses, and taking 

testimony out of Court. 
4th. Of the Testimony and Trial. 
5th. Of the Judgement and Execution. 

1st. Of the Magistrate's jurisdiction. 
The jurisdiction of maofistrates in civil causes, is limited to twenty 

, ,, , r , 1 • » Limited 10 

dollars; and to matters of debt, arising on contract, Act 1S37, p. 17, S^o. 

(except in the parishes of St. Philips and St. Michaels, where they 

have also jurisdiction in cases of trover and detinue, where the 

damages claimed, or the amount in issue, does not exceed $20.) It 

hath been held, however, that a plaintiff may charge less than an 

article or services rendered are worth, and sue for such charge before 

a magistrate; Goldthwaite vs. Dent, 3 M'C, 296. So also in trover; 

he may sue for less than the value of the article converted; Huff vs« 

Huff, 1 Bail., 456. But he may not give up a portion of principal or 

interest of a debt due by note or otherwise, for the purpose of giving 

jurisdiction; Amand vs. Gery, 2 N. & M., 487. But a party may i\i,.,y bring 

bring separate actions on two notes, or a note, and open 'account, |pjiJ[ngf 

although the two united would exceed the jurisdiction of the Court; 

Parrot vs. Green, 1 M'C, 531. 

In all cases of contract to the amount of S20, the jurisdiction of a 

magistrate is exclusive; Allen vs. Singleton, Rice, 290. The juris- „ . 

o ' & ' ' J jfot 10 penal- 

diction of a magistrate does not extend to penalties, except by express ^''^^• 

words of the statute creating the penalty. Anderson vs. Fowler, 1 

Hill, 226. 

2d. Of iJie Summons. 

The summons of the magistrate must be under his hand and seal, its requisites. 
together with a copy thereof, (except in St. Philips and St. Michaels, 
where the original is left at the rejidence of defendant,) directed to 
any constable; must express plainly the names of the parties, the time 
and place of appearing, together with the nature of the demand; and 
if it be on contract, a precise copy of the note, bond, book, account, 
or other demand set up, shall be indorsed or annexed thereto. Act 
1839, 17. 



108 LAW OF IMAGISTRATES. 

Form of Summons. 

State of South Carolina. > 
District. ^ 

By A. B., Esq., magistrate, in and for the said State. 
To any lawful Constable. 

Complaint having been made unto me by C. D., that E. F. is 
indebted to in the sum of dollars, cents, on a (note 

or account, <kc.,) a copy whereof is hereto annexed. These are, 
therefore, to require you to summon the said E. F. to nppear before 
me. at on nest, the day of at o'clock, M.,to 

answer the said complaint. 

Given under my hand and seal, at the day of A. 

D., one thousand eight hundred and 

[L. S.] 

Statement: 

Debt, 8 
Interest, 
Costs. 

oftheser- The service must be by a lawful constable, by delivering to the 
defendant a copy of such summons, or leaving it at his usual place of 
residence, at least five days belore the trial; and the return should 
be by the constable on oath, or the written acknowledgement of the 
defendant, that he has been duly notified. The five <iays notice may 
be dispeftsea with, if the plaintiff make oath that he is apprehensive 
of losing his debt by such delay; a record whereof must be made by 
the magistrate; and in such case the summons may be served and 
returned as the magistrate may direct. Act 1S39, p. 17. 

3. Procuring the attendance of Witnesses, or taking Testimx)ny out 
of Court. 

Any magistrate, on the application of either plaintiff or defendant, 

By summons in ^ cause pending before him, is required to issue a summons, citing 

any person whose testimony may be required in such cause, to appear 

before him at a certain time and place, not more than twenty miles 

from the residence of such witness, to give evidence; which summons 

shall be served personally, at least three days before such attendance 

wnaMy^'^" is required; and if such person shall reglect or refuse to attend, the 

magistrate shall have power to issue a rule, commanding such witness 
By rule. ° . . ° 

to be brought before him: or if any witness attending, refuse to give 

evidence without good cause shewn, the magistrate may commit him 

to the jail of the district for a contempt, not longer than one day, as 



LAW OF MAGISTRATES. 109 

well as fine him, in an amount not exceeding ten dollars; the costs of 
such rule, commitment and detention in custody, as well as the fine so Commit- 
imposed, may be levied of the goods and chattels of sjch recusant tine, 
witness, on the order of such magistrate, directed to any constable of 
the district, as in cases of execution. 

If the attendance of a material witness cannot be had by reason of 
extreme age, sickness or infirmity, or of indispensable absence onincaseof 
public official duty, or consequence of intended removal from the State, " ' 
before the case can be ready for trial, or where such witness may be 
resident, in another district, or without the limits of the State, the 
magistrate before wliom the cause is pending may take the examina- ETamina- 
tion of such witness in writing, or cause the same to be taken by in wr'iUng. 
another magistrate. Provided, that the parties to such cause shall parties to 
have notice of the time and place of such examination in lime to be *^^ "« >ce. 
present. Provided also, that when such examination is made by 
another, it shall be sealed up with the title of the case indorsed, and 
conveyed by a disinterested person to the magistrate authorizing the 
same. — Act 1839, p. 20, sec. 19. 

^th. The Testimony and Trial. 

[See also title Evidence.] 

If the summons be returned duly served, and the defendant make 
default, or appearing no good cause for continuance to be shewn, the 
magistrate may proceed to hear the testimony, and determine the 
case. The plaintiflfmay either establish his claim by the testimony 
of competent witnesses, or by his own oath, when in law he is a oaih, when, 
competent witness; or in case a witness cannot be produced to prove 
such demand, or any matter or thing pertaining thereto, the magis- 
trate may examine the defendant on oath; and in case he refuse to 
take the oath, or to answer such question as shall be demanded of 
him by the magistrate, then the plaintiff may be examined. If the 
defendant set up a discount, the rule shall be reversed as to the right puie m 
of being first sworn. Act 1839, sec. 15. discount. 

5th. The Judgement and Execution. 

If the plaintiff" discontinue or be non-suited, or the complaint be 
disproved, the magistrate shall award proper costs ogainst such plain- 
tiff; but if the demand or any part thereof be sustained, he shall give Ajrainst 

• 1 t r I'll 11. plaintiff. 

judgement therefor, together with the costs, and having entered the 
same in his book, may issue execution for such amount so adjudged, 
which execution may be levied of the goods and chattels of the defen- 
dant, wherever these may be found within the State, at any time 



110 LAW OF MAGISTRATES. 

deitudant. within one year* from the date thereof, and not afterward, but on it 
being returned, not satisfied with the cause thereof; it may be renewed 
at any time within fouryears, by giving five days notice to the defen- 

Execution. daiit; and in like manner a third execution may be sued out, if the 
second be not satisfied. — lb. (See Appeal.) 

Let it be observed, that the act limits the execution to the goods 

lakelands, and chattels of defendants, so that land cannot be levied under such 
execution, and it has been held, that in no case may a magistrate 

Northebody. issue execution against the body. — Cheves R., 235. 

The execution may be sued out at any time, within a year and a 
.day after judgement, and a new action cannot be brought upon the 
judgement within that period. Lee vs. Giles, 1 Bail., 449. 

Form of an Execution after judgement is pronomiced for the Plaintiff, 

District. > ss. 

By L P., one of the justices assigned to keep the peace in and for 
the district aforesaid. 

To any lawful Constable of the District aforesaid. 

These are in the name of the State to charge and command you, 
that on the goods and chattels of E. D., ofthf? district aforesaid, shoe- 
maker, you levy, or cause to be levied, the sum of , which hath 
been by me adjudged to A. P., of said district, yeoman, for a debt; as 
also the sum of , for his the said A. P's costs and charges, expen- 
ded in and about the recovery thereof; whereof the said E. D. is 
convict, according to the Act of Assembly in that case made and pro- 
vided. Given under my hand and seal, the day of in the year 

LP. [L. S.] 

Form of an execution against the 'plaintiff, when non-suited, or judge- 
ment shall pass against him. 

District. > ss. 
• J 

By L P., one of the justices assigned to keep the peace in and for 
the district aforesaid. 

To any lawful Constable of the said district. 

These are to charge and command you, that on the goods and 
chattels of A. B., of the district aforesaid, planter, you levy or cause 
to be levied, the sum of , which hath been by me adjudged to C. 
D., of the said district, shoemaker, for his costs in defending an action 
for a debt brought against him^ by the said A. P.; and in which action 

*By Act of 1^47, 433, changed to four years. 



LAW OF MAGISTRATES. Ill 

he the said A. P., hath been non-suited, according to the Act of 
Assembly in that case made and provided. Given under my hand 
and seal, the day of , in the year • 

Notice of Renewal. 

A. B. ^ 

vs. > Execution. Dated day of 184 
C. D. i 

Whereas it appears to me by the return of E.-F., constable, that 
the said execution hath not been satisfied, but remains unpaid; you, 
the said defendant, are hereby notified to appear before me at 
on the day of at o'clock, to shew cause, if any, why 

an alias execution should not issue in said case. 
Dated day of 18 

G. H. 

Magistrate. 



CHALLENGE. 

[Soe Duelling.] 



CHAMPERTY. 

Campi, par/i7io, or the dividing of the field. It signifies a mainte- ^vhat is. 
nance of any njan in his suit depending, on condition of receiving 
part of the things when they are recovered. It seems to Imve been 
an ancient grievance, and is a very high offence at common law, to 
buy or sell any doubtful title to lands known to be disputed, in order 
that the purchaser may carry on the suit. It does not seem to be 
material, whether the (ille thus sold be good or bad, or whether the 
seller were in possession or not, unless his possession were lawful and 
uncontested; for all practices of this kind are to be discountenanced as 
manifestly tending to oppression, by giving opportunities to great 
men to purchase the disputed titles of others, to the great grievance 
of the adverse parties, who may be often unable or discour'aged to 
defend their titles against such powerful persons, which perhaps they 
might safely maintain against their proper adversary. 1 Haw., 267. 

2d. Its, Punishment. 
The punishment of Champerty is by fine and imprisonment: and 



112 



LAW OF MAGISTRATES. 



by Stat. 32 H. 8, c. 9, in case of buying pretended title to lands, a for- 
feiture of the full value of the land. The prosecution under ^aid 
statute is limited to one year after the offence. 



CHEATS. 



Frauds on 
public. 



Private 
matter. 



False 
pretences 



Miller 

cliuiiging 

corn. 



Minors. 



Cheats are either at common law or by statute. Those at common 
law, are 1st, frauds relative to matters of public concern; as doing 
judicial acts in the name of another, supplying prisoners of war with 
unwholesome food; and relates solely to the affairs of government. 
2d. Such as regard private concerns, which are effected by means 
of conspiracy, forgery, or false tokens, calculated to deceive the public 
in general. State vs. Wilson, 2 M. C. R., 145, 

It seemeth to be the better opinion, that the deceitful receiving of 
money from one man, to another's use, upon a false pretence of having 
a message and order to that purpose, is not punishable by a criminal 
prosecution, because it is accompanied with no manner of artful con- 
trivance, but wholly depends on a bare nak^-d lie; and it is said to be 
needless to provide severe laws for such mischiefs, against which com- 
mon prudence and caution may be a sufficient security. 1 Haw., 188. 

A person, for a counterfeit pass, was adjudged to the pillory, and 
fined. Dalt., c. 32. 

On an indictment against the defendant, a miller, for changing corn 
delivered him to be ground, and giving bad corn instead of it, it was 
moved to quash the same, because it was only a private cheat, and 
not of a public nature. It was answered, that being a cheat in the 
way of trade, it concerned the public, and therefore was indictable. 
And the Court was unanimously agreed not to quash it. T. 16, G. 
2, K, and Wood. Sess. c. v. 1. 

A person falsely pretending that he had power to discharge soldiers, 
took money of a soldier to discharge him; and being indicted for the 
same, the Court held the indictment to be good. T. 3, c. Serlestead's 
case. 1 Latch., 202. 

As there are frauds which may be relieved civilly, and not punished 
criminally (with the complaints whereof the courts of equity do gen- 
erally abound,) so there are other frauds, which, in a special case, 
may not be helped civilly, and yet shall be punished criminally : thus, 
if a minor goes about the town, and pretending to be of age, defrauds 



LAW OF MAGISTRATES. 113 

many persons by taking credit for considerable quantities of goods, 
and then insists on his non-age; the persons injured cannot recover 
the value of their goods, but they may indict and punish him for a 
common cheat. Bar!., 100. 

Finally, the distinction, which, as it seemeth, will solve almost all 
cases of this kind, was taken in the case of K. and Wheatley, H. 1, 
G. 3. The defendant was indicted and convicted for selling beer 
short of the due and just measure, to wit, sixteen gallons as and for shortmea- 
eighteen. It was moved in arrest of judgement ; and by the Court, ' 
this is only an inconvenience and injury to a private person, arising 
from that private person's own negligence and carelessness, in not 
measuring the liquor upon receiving it, to see whether it held out the 
just measure or not. Offences that are indictable, must be such as 
affect the public; as if a man uses false weights and measures, and 
sells by them to all, or to many of his customers, or uses them in the 
general course of his dealing : so if there is a conspiracy to cheat; 
for these are deceptions that common care and prudence are not suffi- 
cient to guard against. These are much more than private injuries: 
they are public offences. But in the present case, it is a mere pri- 
vate imposition or deception; no false weights or measures are used; 
no conspiracy; only an imposition upon the person he was dealing 
with, in delivering him s less quantity instead of a greater, which the 
other carelessly accepted. It is only a non-performance of his con- 
tract; for which non-performance he may bring his action. So the 
selling an unsound horse for a sound one, is not indictable : the buyer 
should be more upon his guard. And the distinction which was laid 
down as proper to be attended to in all cases of this kind, is this: that 
in such impositions or deceits, where common prudence may guard 
persons against their suffering from them, the offence is not indicta- 
ble, but the party is left to his civil remedy for the redress of the injury 
that has been done to him ; but where false weights and measures 
are used, or false tokens produced, or such methods taken to cheat 
and deceive, as people cannot, by any ordinary care or prudence, be 
guarded against, there it is an offence indictable. Burr. Reports, 
1125. 

2d. By Statute. 

By the 33 H. 8, c. 1; if any person shall falsely and deceitfully Qf^jj^j^j^g 
obtain, or get into his hands or possession any money, goods, chattels, eooti^i etc 
jewels, or other things, of any other person, by colour and means of 
any false privy token, or counterfeit letter, made in another man's 
15 



114 LAW OF MAGISTRATES. 

name, and shall be convicted thereof, by examination of witnesses, or 
confession at the Sessions, or by action in any Court of record, he 
shall have such punishment, by imprisonment, pillory, or other corpo- 
ral pain (except death) as the Court shall appoint : saving to the party 
grieved such remedy, by action or otherwise, for the goods so obtained, 
as he might have had by common law. 

On motion to quash an indictment, which was, that the defendant 

Not unless came, pretending that such a person had sent him to receive £20, 

used? ""^ and received it, whereas such person did not send him: by the 
Court; it is not indictable, unless he came with false tokens; for we 
are not to indict one man fur making a fool of another. Blackerby, 79. 
H. 13, G. 2, and Munoz. It was adjudged, that an indictment, 
averring the offence to be by false tokens, without showing what 
those false tokens are, is not sufficient; and that the fraudulently 
procuring a note from a person, by falsely affirming that there was 
one in the next room that wou'd pay the money due upon it, whereas 
in fact there was no such person in the next room, is not a false 
token, but a false affirmation only. Sess. c. v., 201. Str , 112'J. 
By Act of 1791, 1 Faust, 78, it is enacted, that if any person shall 

By cunning, overreach, cheat, or defraud, by any other cunning, swindling garbs 
or devices, so that the ignorant or unwary, who are deluded thereby, 
lose their money or other property, every such person exercising such 

^ infamous practices, shall, on conviction thereof in any Court of this 

State, exercising criminal jurisdiction by trial by jury, be deemed 
guilty of enticing, iriVeigling, defrauding and swindling, and shall 
forfeit a sum at the discretion oft he Court and jury, besides refunding 
to the party aggrieved double the sum he was defrauded of. Under 
which State statute it hath been held, that, obtaining property from 

By threats, an ignorant person by threats of a prosecution for stealing, or by 
threats of his life, constitutes the offence of swindling. State vs. 
Vaughan and Halcolm, 1 Bay, 282. 

But that selling a blind horse as sound, or a free girl as a slave, are 
not within the statute. State vs. Delyon, 1 Bay, 353; and State vs. 
Wilson, 2 M. C. R., 135. 

3d. Precedents. 
1st. Warrant to apprehend a cheat. 

District. > ss. 

To all and singular the Constables, and other peace officers of the 
districts aforesaid. 



LAW OF MAGISTRATES. 115 

Whereas complaint hath been made unto me, A. B., magistrate for 
the said district, upon the oaths of A. I., of yeoman, and B. I., 

of yeoman, that on the day of A. O., of yeoman, 

did, by a false privy token, [or counterfeit letter] that is to say, by 
[here particularize the offence] false.ly and deceitfully obtain, and get 
into his hands and possession [here mention the things] from C. I., 
of contrary to the statute in that case made : these are therefore 

to command you, upon sight hereof, forthwith to bring the said A. O. 
before me, at on the day of to answer to the said com- 

plaint, and farther to be dealt withal according to law. Given under 
my hand and seal, the day of in the year 

A. B. [l. s.] 

Let an affidavit, setting forth at large the particulars of the charge, 
be attached to the warrant. 

2d. Commitment for a cheat. 
District. > ss. 

By A. B,, magistrate in and for the district aforesaid. 

To all and singular the Constables, and other peace officers of the 
district of and to the keeper of the common jail of 

Whereas A.O., late of in the district of yeoman, hath 

been charged, upon oath, before me, with having falsely and deceit- 
fully obtained, and got into his hands and possession, [here mention the 
things] from C. T., of in the district afjresaid, by means of a false 
privy token, contrary to the statute in that case made and provided: 
these are therefore to command you, forthwith to convey and deliver 
into the custody of the said keeper of the said jail, the body of A. O. , 
charged before me with [here specify the offence.] And you, the 
said keeper, are hereby required to receive the said A. O. into your 
custody, in the said jail, and him there safely keep, &c. Given under 
my hand and seal, the day of in the year 

A. B. [l. s.] 



CITIZENSHIP. 
[See Alien.] 



116 LAW OF MAGISTRATES. 

CHURCH. 

[See Burglary.] 



COIN. 

By the constilution of the United States, sec. 8, c. 5, Congress 
shall have power to coin money, regulate the value thereof, and of 
foreign coin; also to provide for the punishment of counterfeiting the 
securities and current coin of the United States. And by sec. 10, c. 
1, no State shall coin money, issue bills of credit, or malce any thing 
but gold and silver coin, a tender in payment of debts. 

1st. Of the coin of the United States. 

By Act of Congress, 1837, 4 Story, 2523, sec. 8th, the standard of 
Of the alloy. S*^^*^ and silver of the United States is required to be such, that of one 
thousand parts by weight, nine hundred shall be of pure metal, and 
one hundred of alloy. And the alloy of silver coins shall be of cop- 
per; and the alloy of the gold coins shall be of silver and copper; 
provided that the silver do not exceed one half of the whole alloy. 
Sec. 9. That of the silver coins, the dollars shall be of the weight 

Of the silver „^ , , , , , i i/- • i . i-i 

coiu. of four hundred and twelve and one half grams, and m lilie proportion 

of the parts of dollars; and shall be a legal tender, according to their 
nominal value, for any sums whatever. 

Gold coin. ^ec. 10. Of the gold coins, the weight of the eagle shall be two 
hundred and fifty-eight grains, and the weight of the half and quarter 
in like proportion ; and for all sums whatever, shall be a legal tender, 
the eagle for ten dollars, the half for five, and the quarter for two and 
a half dollars. 

All gold coins of the United States, coined anterior to July, 1834, 
are required to be received in all payments, at the rate of ninety-four 
and eight-tenths of a cent per penny- weight. 

orthecop. Of the copper coin ; the weight of the cent shall be one hundred 
and sixty-eight grains; and the weight of the half cent eighty-four 
grains; Act 1807, 4th Stcry, 2524. The copper coin is no where 
made a legal tender. 

2d. Of Foreign Coin. 

The following silver coins shall be of legal value, and shall pass 



per com. 



LAW OF MAGISTRATES. 117 

• 

current as money within the United States by weight, for the payment 
of all debts and demands, at the rate of one hundred cents the dollar. 
That is to say, the dollars of Mexico, and Peru, Chili and Central silver. 
America, of not less weight than four hundred and fifteen grains each, 
and those re-stamped in Brazil, of like weight, of not less fineness than 
ten ounces, fifteen pennyweights of pure silver in the troy pound of 
twelve ounces of standard silver, and the five franc pieces of France, 
«Sec., at ninety. three cents each. Act 183^| 4th Story, 2373. 

The following gold coins shall pass current, anjl be receivable in all (^o^ coin 
payments by weight, at the rates following, to-wit: the gold coins of ^y weigiu. 
Great Britain, Portugal, and Brazil, of not less than twenty-two carats 
fine, at the rate of ninety-four cents and eight tenths of a cent, per 
pennyweight; the gold coins of France, nine tenths fine, at the rate 
of ninety-three cents, and one tenth of a cent, per pennyweio^ht, and 
those of Spain, Mexico, and Colombia, of the fineness of twenty-three 
carats, three grains and seven sixteenths of a grain, at the rate of 
eighty-nine cents and nine-tenths of a cent, per pennyweight. 

By Act of Assembly, 4th S. L., 543, gold and silver coins, of the 
following weights and denominations, shall pass current, and be 
received in payment, as a tender in law, in this State, at the following 
value of four shillings and eight-pence sterling to a Spanish milled 
dollar, and at the following relative value to each other: that is to say, 

Weight. d 
A Spanish milled dollar 4s. 8d. 
Johannes, .... 

Half ditto, . , . . 

Quarter ditto, .... 
Eighth ditto, .... 
Moidore, - - . . - 
Half ditto, - . 

Quarter ditto, .... 
Eighth Moidore, ... 

Spanish doubloon, ... 
Double pistole, .... 
Pistole, .... 

Half pistole, .... 
English guinea, .... 
Half ditto, .... 

Quarter ditto, . . • . 
French guinea, . . . - 
French crown of 4 to the Louis d'or, 
English crown, .... 
Pistareen, .... 

German piece, .... 
Half ditto, .... 

Ducat, ..... 

A. A. No. 1276. 
This table is of force, except those parts which conflict with the 
above Acts of Congress. 



')t. grs. 


I. 


s. 


d. 


dollars. 


18 


3 


14 


8 


16 


9 


1 


17 


4 


8 


4 12 





18 


8 


4 


2 6 





9 


4 


2 


6 16 


1 


8 





6 


3 8 





14 





3 


1 16 





7 





li 


20 





3 


6 


Of 


17 


3 


10 





15 


8 12 


1 


15 





■ 7i 


4 6 





17 


6 


3| 


2 3 





8 


9 


1h 


5 7 


1 


1 


9 


4§ 


2 15 





10 


lOi 


n 


1 7 





5 


5i 


1 1-6 


5 5 


1 


1 


5 


4i & 5d. 








5 





1 114 








5 





1 1-14 











11 




6 6 


1 


3 


4 


5 


3 3 





11 


8 


2i 


2 5 





9 


4 


2 



118 LAW OF MAGISTRATES. 

2d. Offences relating to. 
Any person who shall coiiiiterfe it, or utter, or attempt to pass, 

Counterfeit- knowing them to Ije counterfeit, any of the aforesaid gold or silver 
coins, or shall make and keep in his or her possession, any stamp, 
dye, or mould (br coining the same, upon being duly convicted thereof, 
shall be adjudged guilty of felony, and suffer death as a felon, without 
benefit of clergy. (By Act of 1845, this punishment is changed to 
whipping, imprisonment«nd fine.) 

If any person shall wilfully clip, file, or otherwise diminish the 

Clipping. weight or value of any of the gold or silver coin, passing by authority 
of the General Assembly within this State, or shall cause the same 
to be clipped, filed or diminished, he shall, on conviction thereof, 
before the justices of any of the Courts of general sessions within this 
State, suffer, for every offence, twelve months close imprisonment, 
and during that period shall stand twice in the pillory, for one hour 
each time. A. A,, 1408. 

]n the case of the State vs. Antonio, 2d Tr. C. R., 776; it was 
decided that the State may punish offences against the current coin, 
and such punishment may be different from that affixed for such 
offence by Act of Congress; but it seems to be conceded that the 
coinage of the United States is not included in any of the Acts of 
Assembly, and for offences against such coin, the party must be 
indicted under the Acts of Congress. 

Counterfeit- By Act of Congress, 18'25, 3d Story 2005, sec. 20; if any person or 

Bi'iver'coiu'^. P^i'sons shall falsely make, forge or counterfeit, or cause or procure to 
be falsely made, forged, or counterfeited, or willingly aid or assist in 
falsely making, forging, or counterfeiting any coin, in the resemblance 
or similitude of the gold or silver coin, which has been, or hereafter 
may be coined at the mint of the United States, or in the resemblance 
or similitude of any foreign gold or silver coin, which by law now is, 
or hereafter may be made current in the United States; or shall pass, 

orutter,or utter, publish, or sell, or attempt to pass, utter, publish or sell, or 
bring into the United States from any foreign place, with intent to 
pass, utter, publish, or sell, as true, any such false, forged or counter- 
feited coin, knowing the same to be false, forged, or counterfeited, 
with intent to defraud any body politic, or corporate, or any other 

Punished by person or persons whatsoever; every person so offending, shall be 

lilt 6 6lC» 1 1 ti V C3 

deemed guilty of felony, and shall, on conviction thereof, be punished 
by fine, not exceeding five thousand dollars, and by imprisonment, 
and confinement to hard labor, not exceeding ten years, according to 
the aggravation of the offence. 



LAW OF MAGISTRATES. 119 

If any person or persons shall falsely make, forge, or counterfeit, 
or cause, or procure to be falsely made, forged, or counterfeited, or 
willingly aid, or assist in falsely making, forging, or counterfeiting 
any coin, in the resemblance or similitude of any copper coin, which copper coin. 
has been, or hereafter may be coined at the mint of the United Slates; 
orshall pass, utter, publish, or sell, or attempt to pass, utter, publish, 
or sell, or bring into the United States, from any foreign place, with 
intent to pass, utter, publiib, or sell, as true, any such false, forged or 
counterfeited coin, with intent to defraud any body politic, or corpo- 

_ . .1 ~ 1 . Punislied by 

rate, or any other person or persons whatsoever; every person so fi„e etc. 
offending, shall be deemed guilty of felony, and shall, on conviction 
thereof, be punished by fine, not exceeding one thousand dollars, and 
by imprisonment, and confinement to hard labor, not exceeding three 
years. 

If any of the gold or silver coins which shall be struck or coined 
at the mint of the United States, shall be debased, or made worse, as pebasing. 
to the proportion of fine gold, or fine silver, contained therein, orshall 
be of less weight or value than the same ought to be, pursuant to the 
several acts relative thereto, through the default, or with the conni- 
vance of any of the officers, or persons who shall be employed at the 
said mint, for the purpose of profit or gniu, or otherwise, with a frau- 
dulent intent: and if any of the said officers or persons shall embezzle By officers of 

' •' ' mint. 

any of the metals which shall, at any time, be committed to their 
charge for the purpose of being coined, or any of the coins which 
shall be struck or coined at the said mint, every such officer or person, 
■who shall commit any or cither of the said offences, shall be deemed 
guilty of felony, and shall be sentenced to imprisonment and hard imprison- 
labor, for a term not less than one year; and shall be fined in a sum labour. 
not exceeding ten thousand dollars. 



C O I\I M I T M E N T . 

Since the habeas corpus act, a commitment in writing seems more 
necessary than it was in former times; otherwise the prisoner may 
be admitted to bail upon that act, whatsoever his offence may have 
been. 

When a statute appoints imprisonment, but limits no time when, it 
is to be understood that he shall be imprisoned presently. Dalt., 
c. 170. 



LAW OF MAGISTRATES. 

1st. Who may be Co3I3iitted. 

2d. To WHAT Place. 

3cl. The form of the CoM>IITME^-T. 

4th. That the jailor shall receive the Prisoner. 

5th. Shall certify the^ Commitment. 

6th, Commitjient Discharged. 

1st. Who may be Committed. 

There is no doubt but that persons apprehended for offences which 
are not bailable, and also all persons who neglect to offer bail for 
offences which are bailable, must be committed. 2 Haw., 116. 

And it is said, that wheresoever a justice is empoivere^ by any 
statute to bind a person over, or to cause him to do a certain thing, 
and such person being in his presence, shall refuse to be bound, or to 
do such thing, the justice may commit him to jail, to remain there till 
he shall comply. 2 Haw., 116. 

If a prisoner be brought before a justice, expressly charged with 
felony upon oath, the justice cannot discharge him, but must bail 
or commit him. 2H. H.,121. 

But if he be charged with suspicion only of felony, yet if there be 
no felony at all proved to be committed, or if the fact charged as a 
felony, be in truth no felony in point of law, the justice may discharge 
him; as if a man be charged with felony tor stealing a parcel of the 
freehold, or for carrying away what was delivered to him, and such 
like, for-which, though there may be cause to bind him over as for a 
trespass, the justice may discharge him as to felony, because it is not 
felony. But if a man be killed by another, though it be by misadven- 
ture or self defence, (which is not properly felony) or in making an 
assault upon a minister of justice in execution of his office (which is 
not at all felony) yet the justice ought not to discharge him; for he 
must undergo his trial for it ; and therefore he must be committed, or 
at least bailed. 2 H. Ht, 121. 

2cl. To what place. 

All felons shall be committed to the common jail, and not elsewhere. 
Generally, if a man commit felony in one count}, and be arrested for 
the same in another cour.ty, he shall be committed to jail in the county 
where he is taken. Dalt., c. 170. 

Yet if he escapes, and is taken on fresh suit, in another couirty, he 
maybe carried back to the county where he was first taken. Dalt., 
c. 170. 



LAW OF MAGISTRATES. 121 

3(Z. Form of the Commitment. 

It must be in writing, either in the name of the State, and only in writing, 
tested by the person who makes it, or it may be made by such person 
in his own name, expressing his office or authority, and must be 
directed to the jailor or keeper of the prison. 2 Haw., 119. 

Yet the mention of the name and authority of the justice, (lord Hale 
says) in the beginning of the mittimus, is not always necessary, for JJ^g^J'jjj*^^"^ 
the seal and subscription of the justice to the mittimus is sufficient'^' 
warrant to the jailor ; for it may be supplied by averment, that it was 
done by the justice. 2 H. H., 122. 

It should contain the name and surname of the party committed, 
if known; if not known, then it may be sufficient to describe the 
person by his age, stature, complexion, colour of his hair, and the 
like, and to add that he refuseth to tell his name. 1 H. H., 577. 

It is safe, but not necessary, to set forth that the party is charged 
upon oath. 2 Haw., 120. 

It ought to contain the cause, as for treason, or felony, or suspicion cause, 
thereof; otherwise if it contain no cause at all, if the prisoner escape, 
it is no offence at all ; whereas if the mittimus contained the cause, 
the escape were treason, or felony, though he were not guilty of the 
offence; and therefore for the State's benefit, and that the prisoner 
may be the more safely kept, the mittimus ought to contain the cause. 
2 Inst., 52; 1 Ed. 2, St. 2. 

And hereupon it appeareth, that a warrant or mittimus, to answer 
to such things as shall be objected against him, is utterly against 
law. 2 Inst., 591. 

Also it ought to contain the certainty of the cause; and therefore 
if it be for felony, it ought not to be generally for felony, but it must 
contain the special nature of the fulony, briefly, as for felony for the 
death of such an one, or for burglary in breaking the house of such a 
one; and the reason is, because it may appear to the judges of the 
Court upon an habeas corpus, whether it be for felony or not. 2 H. 
H., 122. 

But the want hereof seems not to make the commitment absolutely 
void, so as to subject the jailor to a false imprisonment; but it lies 
in averment to excuse the jailor or officer, that the matter was for 
felony. 1 H. H., 5S4. 

It must have an apt conclusion ; as if it is for felony, to detain ^'f" conclusion. 
till he be thence delivered by law, or by order of law, or by due course 
of law. 2 Haw., 120; 2 H. H., 123. 
16 



122 LAW OF MAGISTRATES. 

But if the conclusion be irregular, it doth not seem to make the 
warrant void, but the law will reject that which is surplusage, and the 
rest shall stand ; so that if the matter appear to be such, for which he 
is to remain in custody, or be bailed, he shall be bailed or committed, 
as the case requires, and not discharged, but the wrong conclusion 
shall be rejected. 1 H. H., 584. 

Time. Where a statute appoints imprisonment, but limits no time how 

long, in such case the prisoner must remain at the discretion of the 
Court. Dalt., c. 170. 

gga, It must be under seal ; and without this the commitment is unlaw- 

ful, the jailor is liable to false imprisonment; and the wilful escape by 
the jailor, or breach of prison by the felon, makes no felony. 1 H. 
H., 593. 

But this must not be intended of a commitment by the sessions, or 
other court of record : for there the record itself, or the memorial 
thereof, which may at any time be entered of record, is a sufficient 
warrant, without any warrant under seal. 1 H. H., 584. 

Place. It should also set forth the place at which it is made, that it may 

appear to be within the jurisdiction of the justice. 2 Haw., 119. 

Pate. It must also have ? certain date, of the year and day. 2 H. H., 123. 

4/7^. Jailor shall receive the Prisoner. 
If he refuse. If the jailor shall refuse to receive a felon, or take any thing for 
receiving him, he shall be punished for the same by the justices of 
jail delivery. 4 Ed. 3, c. 10; Dalt., c. 170. 

But if a man be committed for felony, and the jailor will not receive 
him, the person that arrested him may, in such case, keep the prisoner 
in his own house, as it seemeth. Dalt., c. 170. 

But in other cases, it seems that regularly, no one can justify the 
detaining a prisoner in custody out of the common jail, unless there 
be some particular reason for so doing ; as if the party be so danger- 
ously sick, that ic would apparently hazard his life to send him to the 
jail, or there be evident danger of a rescous from rebels, or the like. 
2 Haw., 118. 

5th. Shall certify the commitment. 
By the 3 H. 7, c. 3; the sheriff or jailor shall certify the commit- 
ment to the next jail delivery. 

Qth. Commitment discharged. 
Not if com- It seems that a person legally committed for a crime, certainly 
crime done, appearing to have been done by some one or other, cannot be lawfully 



LAW OF MAGISTRATES. 123 

discharged by any one but the Slate, till he be acquitted on his trial, 
or have an ignoramus found by the grand jury, or none to prosecute 
him on a proclamation for that purpose, by the justices of jail delivery. 
But if a person be committed on a bare suspicion, without an indict- But may, if 

, . \ c 1 • I i_ °" susj.icion. 

ment for a supposed crime, where afterwards it appears that there 
was none, as for the murder of a person thought to be dead, who 
afterwards is found to be alive; it hath been holden, that he may be 
safely dismissed, without any farther proceeding, for that he who 
Buffers him to escape, is properly punishable only as an accessary to 
his supposed offence ; and it is impossible that there should be an 
accessary where there can be no principal ; and it would be hard to 
punish one for a contempt, in disregarding a commitment founded on • 
a suspicion, appearing in so uncontested a manner to be groundless. 
2 Haw., 121. 

Wmrant of commitment. 

District. > ss. 

By I. P., Esquire, magistrate in and for the said district. 
To A. B., Constable of the parish aforesaid, and to the keeper of the 
common jail in the district aforesaid. 

These are to command you, forthwith to convey and deliver into the 
custody of the keeper of the said jail, the body of A. O., charged before 
me on the oath of A. C, with [here specify the offence.] And you, 
the said keeper, are hereby required to receive the said A. O. into 
your custody, in the said jail, and him there safely to keep until he be 
thence delivered by due course «^f law. Given under my hand and 
seal, the day of in the year 

I. P. [L.S.] 



COMPOUNDING. 

The offence of compounding a felony, is, where a party robbed, p^^^uj^jj^ 
not only knows the felon, but also takes his goods again, or other 
amends, upon agreement not to prosecute. It is said to have been 
anciently punishable as felony, but now only with fine and imprison- ^'JJ^ P""'^*"" 
ment, unless it be accompanied with some degree of maintenance 
given to the felon, which makes the party an accessary after the fact. 
The barely taking again one's own goods, which have been stolen, Jtfjfjg^""*' 



124 LAW OF MAGISTRATES. 

is no offence at all, unless some favour be shewn to the thief. 1 Rus- 
sel, 136. 

An agreement to put an end to a misdemeanor, has been considered 
to be illegal, as impeding the course of public justice; but it is some- 
Agreement times done after conviction, with the sanction of the Court, in cases 
tion. where the offence ])riiicipally and more immediately affects an indi- 

vidual; ihe defendant being permitted to speak vvith the prosecutor 
before any judgement is pronounced, and a trivial punishment being 
inflicted if the prosecutor declares himself satisfied. And where, in 
a case of an indictment for ill-treating a parish apprentice, a security 
Held valid. ^^^ ^^^ ^^-j. gxp^ses ofthe prosecution had been given by the defen- 
dant after conviction, upon an understanding that the Court would 
abate the period of his imprisonment, the security was held to be good, 
upon the ground that it was given with the sanction ofthe Court, and 
to be considered as part ofthe punishment suffered by the defendant 
in expiation of his offence, in addition to the imprisonment inflicted 
on him. 

The compounding of information on penal Statutes is a misdemeanor 
against public justice, by contributing to make the laws odious to the 
people. 1 Russel, 135, 136. 



CONFESSION. 

[See Evidence.] 



CONSPIRACY. 

Is the confederating of two or more persons, to injure a private 
person, or the interest ofthe public, or to do any unlawful act. 

One person alone cannot be guilty of conspiracy; from whence it 
follows, that if all the defendants who are prosecuted for such a con- 
spiracy be acquitted but one, the acquittal ofthe rest is the acquittal 
of that one also : and upon the same ground it hath been holden, that 
no such prosecution is maintainable against a husband and wife, only 
because they are esteemed Ijut as one person in law : but it is certain, 
that an action on the case, in the nature of a conspiracy, may be 
brought against one only : also it hath been resolved, that if such an 



LAW OF MAGISTRATES. 125 

action be brought against several persons, and all but one be acquit- 
ted, yet judgement maybe given against that one only. 1 Haw., 192. 

All confederacies, wrongfully to prejudice another, are misdemea- 
nors at common law, whether the intent be to injure his person, his to injure a 
property, or his character; as a conspiracy to indict an innocent person. 
man of felony, falsely and maliciously, and this, though the indictment 
be insufficient, or the Court before M'hich it was taken had no juris- 
diction to try the offence; 1 Haw., c. 72, sec. 3. Conspiring to 
marry a girl to get her fortune, is an indictable offence; 3 Ves., and 
B., 173. So is a conspiracy to marry under a feigned name, for the to marry, 
purpose of setting up a fictitious claim to an estate, though no one is, 
in reality, injured; Leach., 39. An indictment lies for conspiring to 
cheat or defraud another. 2 B. and A., 204. 

There are many cases in which the act would not be cognizable 
at law, which become the subject of indictment, when effected by 
several with a joint design. The verbal slander of another is not To slander, 
indictable, but it is so where several unite in a scheme to injure his 
character; 1 Lev. 6, 2. Each person attending a theatre has a right to 
express his disapprobation of a piece, or a performer; but if several 
previously agree to condemn a play, or hiss an actor, they will be To condemn 
guilty of conspiring. 2 Camp., 358. ^^' 

The offence of conspiracy is not confined to the prejudicing a parti- The public 
cular individual; it may be to injure public trade, to affect public 
health, to violate public policy, to insult public justice, or to do any 
act, in itself, illegal. 

A conspiracy to prevent a prosecution for a felony, is an indictable 
offence; 14 Ves., 165. So is a conspiracy to effect a restraint of 
trade. 13 East., 230. 

A combination of workmen to raise their wages, of wine nier- ^yofj^^jg^ 
chants to sell pernicious liquor, of parish officers to marry paupers; and*''' 
of any persons to procure the release of prisoners by fictitious bail, is 
indictable as a conspiracy. 8 Mod. 2 Ld. Bay, 1179. 6 East,, 
133. 4 Bur., 2106. 

A combination between private individuals to support each other in combina- 
all undertakings, lawful or otherwise, is illegal. 9 Co. 56. ^'°°^' 

In every case of conspiracy, the defence depends on the unlawful 
agreement, and not on the act which follows it; the latter is but offence 

•J r- 1 r- -n 1 1 • complete by 

evidence of the former; 2 Bur., 953. And it is not necessary to agreement, 
constitute the offence, that any act should be done in pursuance of the 
agreement, or that any party was actually injured. 8 Mod., 321, I 
Leach, 39. 



126 LAW OF MAGISTRATES. 

Conspirators may be indicted at the suit of the State, and were, by 
the ancient common law, to receive the villenous judgement; but it 
is now the better opinion, that the villenous judgement, is, by long 
The punish- disuse, become obsolete, it not having been pronounced for ages, but 
instead thereof, the delinquents are usually sentenced to fine, impri- 
sonment, and pillory. 4 B. C, 137. 

But though the villenous judgement be obsolete, yet one of the 
incidents thereto, namely, incompetency as a juror or witness, is con- 
sequent upon conviction of conspiracy to accuse another of felony. — lb. 

Precedents. 
Affidavit. 
State of Soutii-Cabolixa, > 
District. ^ 
Personally appeared before me, C. D., (full name) who being duly 
sworn, deposes and says, that E, F. and G. H., did on the day 

of A. D. at in the district and State aforesaid, unlawfully 

confederate and conspire together to injure (this deponent, or the 
public, as the case may be) [Here state specially the matter of 
confederacy,] and the acts (if any) done in pursuance thereof. 
Sworn to before me this day of 18 

C. D. 
B. C. 

Magistrate. 
Warrant. 
State of South-Carolina, } 
District. ^ 
By A. B., magistrate, in and for the district and State aforesaid. 

To any lawful Constable. 
Whereas complaint upon oath has been made before me by C. D., 
that E. F. and G. H., (the initials will not suffice, always give the 
names in full) did on the day of , at in the district and 

State aforesaid, unlawfully confederate and conspire together to injure 
the said deponent, by &c. 

These are therefore to command you, forthwith, to arrest the said 
E. F. and G. H.,and bring them before me, to be dealt with accord- 
ing to law. Given under my hand and seal, this day of 

A. B. [l. s.] 

Magistrate. 



LAW OF MAGISTRATES. 127 

CONSTABLES. 

1st. Who shall not he a Constable. 

Justices of the peace, clergymen, attornies, infants, lawyers, mad- 
men, physicians, idiots, poor, old, and sick persons, are exempted 
from serving as constables. Cro. Car., 389. Noy, 112, 113. 

Any person being appointed a constable, may, with leave of the 
Court of General Sessions, be exempted, upon his finding some person 
to do the duty for him, and who shall be approved of by the said Court. 

2cZ. How appointed and Sworn. 

By Act of Assembly, 1839, p. 36, sec. 30, each magistrate may f^^^^°|„g„j 
appoint one constable; and the evidence of his appointment to be filed 
with the clerk, shall be a certificate in form following. 

I hereby nominate and appoint A. B. constable, this day of 

18 

C. D. 

Magistrate for district. 

But there shall not be, at any time, more constables in any district 

than there are magistrates, and a vacancy in the office of constable Nnmberof 

1 11 1 ■\- 1 • 1 r Mill • r • vacancies 

shall be supplied in the torm prescribed by the magistrate first appomt- mied. 
ing him, if still in office, or by his successor, always specifying the 
vacancy supplied. — lb. 

The parishes of St. Philip's and St. Michael's are exempt from tlie j,^ ^ j^^ gj^ 
operation of this act. And in said parishes, the number of constables^' ^'"*^''^* 
are limited to fifteen, and must be elected by a majority of the Board of 
Magistrates, and may, in like manner, on conviction before said 
Board, of any official misconduct, be removed from office. 

By Act of 1839, p. 55, when any person shall receive the appoint- 
ment of constable, he shall repair to the clerk's office of the district, „. . ^ . 

, Giving bond. 

and together with the evidence of his apppointment, he shall lodge 
his bond in form following. 
State of South-Carolina. 

Know all men by these presents, that we (name of person and sure- 
ties,) are held and firmly bound unto the State of South-Carolina, in Form of 
the penal sum of five hundred dollars, to the payment of which, well 
and truly to be made, we bind ourselves, and each and every of us, 
our heirs, executors, and administrators, firmly by these presents. 
Sealed with our seals, and dated this day of Anno Domini, 

one thousand eight hundred and and in the year of the inde- 

pendence of the Lnited States of America. 



LAW OF MAGISTRATES. 



Whereas the above bound C. D. hath been appointed to the office 
of constable; Now the condition of the above obligation is such, that 
if the above bound C. D., shall well and truly perform the duties o^ 
said office, as now or hereafter required by law, during the whole 
period he may continue in said office, then the above obligation to be 
void and of none effect, or else to remain in full force aud virtue. 

Sealed and delivered in the presence of, 

[L. S.] 

[L. S.l 
[L. S.] 

With good sureties to said bond, not less than two, nor more than 
five, to be approved, in writing, by the clerk, and upon taking the fol- 
lowing oath, — "I do solemnly swear (or affirm) that I will be faithful, 
and true allegiance bear to the State of South-Carolina, so long as I 
may continue a citizen thereof; and that I am duly qualified according 
to the Constitution of this State, to exercise the office to which I have 
been appointed, and that I will, to the best of my abilities, discharge 
the duties thereof, and preserve, protect, and defend, the Constitution 
of this State and of the United States, so help me God." 

" And I further swear (or affirm) that I will enforce, and to the 
extent of my power and ability, carry into effect the statute against 
gaming, passed the 19th day of December, 1816, and in all cases, 
bring to justice violations of the same, whenever such violations shall 
come within my view and knowledge; so help me God." Such person 
filing the bond, and taking the oath as above, shall be entitled to a 
certificate from the clerk that he has filed his bond, and taken the 
requisite oaths, and shall thence be regarded as a regularly qualified 
constable; nor shall any person, not so qualified, exercise the powers 
of a constable. 

Special constables may be appointed by a presiding judge, or a 
magistrate, to act by virtue of such appointment, only on a particular 
occasion, specified in writing. Act 1337, p. .55. 

A person lawfully appointed, as constable, if he shall refuse to be 
sworn, may be bound over by a magistrate, to appear at the next Court 
of Sessions, there to be indicted. Dalt., c. 28. 

3d. Of term of office, the extent of his jurisdiction, and his authority. 
The term of the office of constable shall be four years, to be esti- 
mated from the time he qualifies before the clerk. Act 1839, p. 55, 
sec. 1st. But he is not bound to serve more than two years. 6th 
S. L., 180. 



LAW OF MAGISTRATES. 129 

Every qualified constable shall be entitled to exercise his office Extent of 
throughout the judicial district in which he may be appointed. 

Every constable shall be a conservator of the peace; shall take of his 
into custody, and carry before the nearest magistrate, any person or 
persons who may be in his view, engaged in riotous conduct or open 
violation of the peace, and refuse, upon his command, to desist there- 
from; and also any person who may in his view commit any felony 
or misdemeanor; and for the purpose of preserving the peace, and 
also executing any criminal process, every constable shall have power 
of ordering out such posse comitatus to his assistance, as may be 
necessary to enable him to discharge his duty; and any person refusing 
to obey his summons, shall be liable to indictment and punishment 
as for a misdemeanor. Act 1839, p. 56, sec. 10. 

He may break open doors to see the peace kept, and may justify 
the beating of those who resist him. 1st Nelson's Justice, 229. 

Ath. Of his duty and liahility. 

A constable is authorized, and he shall be bound faithfully and Execute 
promptly to execute all process lawfully directed to him by competent ^'^°"^^' 
authority; he shall make return on oath to the person issuing the Return, 
process, to be indorsed in writing on the same, of his proceedings by 
virtue of it: he shall, in every case where he may levy an execution, 
or serve an attachment on personalty, specify by indorsement on the 
execution, or attachment, or by schedule thereunto annexed, a list 
of every article so levied on or attached, and forthwith lodge a copy 
of such list with the person issuing the process under which he acts: 
in all cases of sale, he shall give ten days notice, by advertisement, 
at two of the most public places in the neighborhood, of the time and 
place of such sale; and in default of paying over the amount of any 
debt collected, to the party entitled, or liis lawful agent, or to \\\q fox noi ^^y- 

' •' o ' ji,g moneys 

magistrate, upon demand, or in default of returning to the defendant, collected, 
upon demand, any overplus which may be in the hands of the consta. 
ble, he shall be liable to pay in either case, to the party in interest 
the original sum and ten per cent, per month, to be recovered before 
a magistrate, if not more than twenty dollars in amount; if greater, 
before the Court of Common Pleas by petition, besides being liable 
to be indicted and punished as for a misdemeanor. A. 1839, p. 56, 
sec. 5tb. 

Every constable shall be bound to execute, when required, every .j,^ g^g^yj^ 
lawful order, judgement, and determination of the magistrate, and of^^agi'g^trate. 
any Court constituted of a magistrate, or magistrates and freeholders; 
17 



130 LAW OF MAGISTRATES. 

and for disobedience herein, he shall be liable to be indicted and 
punished as for a high misdemeanor. Act 1839, p. 56. 
Toattend All, or SO many of the constables of any district as may be required 

by the sheriff, shall he bound to attend any of the Courts of Common 
Pleas or Equity, shall be officers of the Court, and perform the appro- 
priate duties and services assigned them by the sheriff and presiding 
judge; and each constable so attending, shall be entitled to receive 
the compensation of one dollar and fifty cents for each day's attend- 
ance. Act of 1H39, p. 56, sec. 9. 
To arrest ^^ IS the duty of any constable, in any parish or district in which 

meriii^'ur ^^Y f*"^® person of color may enter into the Slate, upon information 
the stale, ^f jjje migration or introduction of such fiee person of color, to arrest 

and bring such person before a magistrate. 
To'crvcthe Any Constable or sheriff, to whom the warrant of coroner shall 
co^oiier! "'^ come, shall forthwith execute the same, and repair unto the place at 
the time therein mentioned, and make return of the warrant, with his 
proceedings thereon, to the coroner that granted it ; and any consta- 
ble or sheriff failing to perform the duty required of him by such 
warrant, or failing to return the same as aforesaid without reasonable 
excuse, shall forfeit and pay the sum of twenty dollars, to be recovered 
by indictment. Act of 1839, p. 50, sec. 10. 

5th. His protection in Ids office. 

If sued. If an action is brought against a constable for any thing done by 

virtue of his office, he, and also all others, who, in his aid, or by his 
command, shall do any thing concerning his office, may plead the 
general issue, and give ihe special matter in evidence ; and if he 
recovers, he shall have double costs. A. A., No. 581. 

If assaulted. If a constable is assaulted in the execution of his office, he need not 
go back to the wall, as a private person ought to do; and if in the 
striving together the constable kills the assailant, it is no felony; but 
if the constable is killed, it shall be construed premeditated murder. 
Hale's PI., 37. 

Qtli. Punishment and removal. 
Foroppres- For oppression in office, whether by undue personal violence, cru- 

sion, etc. •• , . r • i i • i 

elty, takmg an amount of property, in unreasonable proportion to the 

sum to be collected, or for any wilful official misconduct, habitual 

negligence, habitual drunkenness, or fraud, when established to the 

Fine and satisfaction of a jury, upon indictment, a constable shall be punished 

Imprison- ... ;. i /. i ,. 

menu by imprisonment not exceeding one year, and fined not exceeding one 



LAW OF MAGISTRATES. 131 

thousand dollars, at the discretion of the Court, besides being liable 
to an action on the case by the party aggrieved ; but if any such 
action for damages shall be instituted against a constable, and the 
plaintiff fails, he shall be liable to be mulcted in double or treble 
costs, by order, and at the discretion of the presiding judge. 

Upon the conviction of any constable, by indictment, the judge, Q^^g^^gp^. 
before whom the case .may be tried, shall have power, by order, to ^®'*' 
declare the convict to be removed from office; whereupon his office shall 
be deemed vacant, and the vacancy may be filled by the magistrate 
who originally appointed him, if in office, or by his successor, in 
manner as prescribed for original appointments. Act of 1839, p. 
56, sees. 7 and 8. 

In the parishes of St. Philip's and St. Michael's, the board ofmaeis- ,, 

■^ . Constable to 

trates shall be, and are hereby, vested with the power of trying the be tried by 

•' ' , J a magistrates. 

constables now appointed, or hereafter to be appointed by them, for 
misbehaviour, or malfeasance in office, and to suspend or remove from 
office such constable or constables as shall be convicted thereof by a 
majority of the said board. 6th S. L., p. 418, sec. 2. 



CONTEMPT. 

[See Attachment for ] 



CORN. . 

[See Burning.] 

Isf. Slealing of. 

At common law, the stealing of gathered corn was punished as a ^^ ^^j^jj^^jj 
larceny; but the taking it from a field was only a trespass, for which '^"'• 
a civil action would lie. But if the person shall cut it at one time^ 
and come again another time and take it away, it is felony. 

By Act of 1826, 6 S. L., p. 284, it is enacted, that from and after the ^ ^^^^^^^ 
first day of June next, if any person shall take, from any field not belong, 
ing to such person, any cotton, corn, rice, or other grain, fraudulently* 
with an intent secretly to convert the same to the use of such person 
taking the same, such person so offending shall be guilty of larceny, 
either grand or petit, as the value of the property may be. 



132 LAW OF MAGISTRATES. 

2d. Buying from a slave. 
Penalty for gy Act of 1834, 6 S. L., p. 516, sec. 1, it is enacted, that if any 

purchasing •' 7 ^ r ' ' 

cotton, rice, shop-keeper or trader shall, directly or indirectly, purchase from any 

Indian corn ' ' •' . . . , 

or wheat, slave, anv cotton, rice, indian corn or wheat, either with or without 

from a slave. ' ^ ' ' , rr 

a permit, such shop-keeper or -trader shall, for every such otience, 
upon conviction thereof, be fined a sum not exceeding one thousand 
dollars, and be imprisoned for a term not exceeding twelve months, 
nor less than one month. 
whatisevi- Sec. 2. If any shop-keeper or trader shall receive any cotton, rice, 
chase. indian corn or wheat, from any slave, he or she shall be presumed to 

have purchased the same; and the burthen of proof, that the same 
was not purchased, shall lie on the person charged or accused. 

Sec. 3. In all cases of buying or selling any cotton, rice, indian 

corn or wheat, contemplated and included in the preceding sections 

cieiiim-a'gentof this Act, the act of the clerk or agent of any shop-keeper or trader, 

the principal, shall be Considered the act of the shop-keeper or trader himself, and 

done by his authority; subject, however, to proof to the contrary, 
penaityfor Scc. 5. If anv shop-keeper or trader, within the parishes of 

purchasing ^11 i 

cotton, or gt^ Philip's and St. Michael's, shall, directly or indirectly, purchase or 

milled nee, ' ' ' j jji 

from free receive from any free person of colour residing within the said parishes, 

persons ot j i d i ' 

colour. any cotton or milled rice, such shop-keeper or trader shall, for every 
such offence, upon conviction thereof, be liable to all the penalties 
imposed by this Act, on shop-keepers or traders purchasing from 
slaves, unless such free person of colour shall have the written permit 
of his guardian to sell such cotton or milled rice. By Act of 1839, p. 
49, et seq. 



CORONER. 

Be it enacted, by the Honorable the Senate and House of Repre- 

Coroners, sentatives, now met and sitting in General Assembly, and by the 

jwappoin a,uthority of the same, that a coroner for each of the judicial districts 

in this State, shall be appointed by joint resolution of the Senate and 

House of Representatives. 

Term of Every coroner so appointed shall continue in office four years from 

. the time of his appointment, and until a successor shall be appointed, 

and enter on the duties of his office. 

Vacancies. Whenever any vacancy shall occur in the said office, by death, 



LAW OF MAGISTRATES. 133 

resignation or otherwise, during the recess of the Legislature, the 
same shall be filled by the Governor, which appointment shall con- 
tiniie until the end of the nest session of the Legislature, and until a 
successor shall be appointed. 

Every coroner, before entering on the duties of his office, shall give 
bond in the form now required bylaw of all public officers, with good go^d. 
sureties, in the sum of five thousand dollars, except the coroner for 
Charleston district, who shall give bond in the sum of ten thousand 
dollars, which bond, after being duly approved according to law, shall 
be lodged in the office of the Treasurer of the Division to which his 
district belongs. 

Every coroner, before entering on the duties of his office, shall, oath. 
before some lawful magistrate of the district for which he is appointed, 
take the oath of office, prescribed by the amendment to the fourth 
article of the Constitution, which shall be indorsed on the back of his 
commission, and signed by him, and by the magistrate before whom 
it was taken. 

It shall be the duty of the Governor, when a person appointed coro- commission. 
ner, has given bond and complied with the other requisitions herein 
before prescribed, and when such person produces a certificate from 
the Treasurer of the Division in which he lives, that his bond has 
been lodged in the office of the said Treasurer, to commission such 
person, according to the provisions of this act. 

No coroner shall act as jailor, deputy sheriff, or under any appoint- 
ment by a sheriff, or hold any other appointment whatsoever, made Not to act as 
by the sherifTof his district: and if any coroner shall accept, or shall ^'i^'ff- '^•=- 
act under the appointment of the sherifTof his district, his office as 
coroner shall be vacated, and the Governor shall fill the vacancy on 
application, and the appointment so made, shall continue until another 
shall be appointed, as directed heretofore. 

Every coroner within the district for which he has been appointed 

To take 

is empowered to take inquests of casual or violent deaths, committed inquests. 
or happening where any dead body is lying within his district. 

When the coroner shall be informed of, or shall see the dead body 
of any person, supposed to have come to a violent and untimely death, 
found lying within his district, he shall make out his warrant, directed 
to all or any of the constables of his district, or to the sheriff of hissummoninga 
district, requiring them or any of them, forthwith, to summon a jury^"'^' 
of fourteen men, of the district, to appear before him, at the time and 
place specified in the warrant,' which warrant shall be in this form. 



134 



LAW OF MAGISTRATES. 



Any consta- 
ble or sheriff 
to exi'cuie 
warrant. 



Persons 
liable to 
seive as 
jurors. 



Number of 
jurors and 
oath- 



Charge to 
jury. 



The State of South-Carolina. 

To the sheriff, or to any constable or constables, (as the case may 
be) of di.strict. Greeting. 

These are to require you, immediately on receipt and sight hereof, 
to summon and warn, verbally, or otherwise, fourteen men of the said 
district, to be and appear before me, the coroner of the said district, 
at , within the said district, between the hours of and of 

o'clock, on the day of , then and there to inquire, upon the 

view of a body of a certain person there lying dead, how he came to 
his death. Fail not herein, as you will answer the contrary at 
your peril. Given under my hand and seal, at , this day of 

A. D., by me. 

A. B., [l. s 
Coroner for district. 

Any constable or sheriff", to whom such warrant shall come, shall 
forthwith execute the same, and repair unto the place at the time 
therein mentioned, and make return of the warrant, with his proceed- 
ings thereon, to the coroner that granted it; and every constable or 
sheriff, failing to perlorm the duty by such warrant required of him, 
or failing to return the same as aforesaid, shall forfeit and pay the sum 
of twenty dollars, without reasonable excuse, to be recovered by 
indictment; and each and every person summoned and warned as 
aforesaid, to be a juror, and failing to appear and act as such juror, 
shall also forfeit and pay the sum of twenty dollars, without reasonable 
excuse, to be recovered by indictment. 

All free white men of the age of twenty-one years, shall be liable 
to serve as jurors on an inquest on a dead body, found within their 
district. 

Of the jurors summoned and appearing, the coroner shall swear 
twelve or more, and administer to the foreman appointed by him, an 
oath, in the'form following: "You shall enquire and true presentment 
make, on behalf of the State of South-Carolina, in what manner 
A. B., here lying dead, came to his death; and you shall deliver a 
true verdict thereon, according to such evidence as shall be given, 
and according to your knowledge; so help you God." And to the 
others he shall administer an oath in this form: ''The oath which your 
foreman hath taken on his part, you shall well and truly observe and 
keep on your part; so help you God." 

The jury so sworn shall be charged by the coroner to declare upon 
oath, whether the deceased came to his death by mischance and acci- 
dent, or by felony; and if by felony, whether by his own or another's; 



LAW OF MAGISTRATES. 135 

and if by mischance, whether by the act of God or man; and if he 
died of another's felony, who were principals, and who accessaries; 
who threatened him, of life or murder, and with what instrument he 
was struck or wounded; and if by mischancq or accident, by the act 
of God or man, whether by hurt, fall, stroke, drowning, or otherwise: 
and he shall also charge them to enquire of the persons that were 
present at the finding of the body, whether he were killed in the same 
place or elsewhere, and if elsewhere, by whom, or how he was there 
brought, and of all other circumstances. 

If the jury, so charged, find that the deceased came to his death by Enquiry in 
his own felony, they shall further enquire into the manner, names and gu^cide^ 
instrument, and into all the circumstances of the death. 

The jury being charged, they must stand together until proclama- Proclama- 
tion be made for any that can give evidence to draw near, and they 
shall be heard. , 

The coroner shall have power to issue a warrant or warrants, to Powerto 

issue 

summon witnesses, and to examine before the jury any person present, warrants, 

, , , .1111 summon, 

whether summoned or not, concerning the death; and every person examine, 

J • 1 • • 1 IT J- L bind over, 

sumtnoned or required to give evidence, and disregarding such sum- commit, etc. 
mons, or refusing to testify, without such excuse as shall be lav\'ful and 
sufficient, shall forfeit and pay the sum of twenty dollars, and shall be 
committed fo jail by the coroner, until the next Court of Sessions, or 
until he testifies, and is discharged by the coroner; (the said forfeiture 
to be recovered by indictment,) and in addition, shall be liable to be 
indicted at the next Court of Sessions for the district, and upon con- 
viction, shall be fined and imprisoned at the discretion of the Court. 
And the coroner shall bind such witness or witnesses, so appearing, 
by recognizance, with good and sufficient sureties, to appear at the 
next Court of Sessions, to stand his trial; and the witness refusing to 
enter into such recognizance, shall be forthwith committed to the jail 
of the district, by commitment under the hand and seal of the coroner, 
there to be kept until he enter into such recognizance, as is before 
required. 

A coroner shall have power, if he deem it necessary, to adjourn the 
jury, either from day to day, or to any other day and place, to receive adjourn ihe 
evidence, binding the jurors severally by one recognizance, in such J"f°'^S'^S'^- 
amount as he sh ill think fit for their appearance; which recognizance 
maybe estreated, as to any of the conusors for default, by the Court 
of General Sessions. 

If all or any of the jurors should fail to reappear at the day and 

, . , , T Absentjurors 

place to which they were adjourned, the coroner shall issue his war- supplied, etc. 



LAW OF MAGISTRATES. 



To take 
down testi- 
mony in 
wriiing.and 
bind over or 
cnmniit 
witnesses. 



rant to supply the places of tlie absent jury, or so many of the jurors 
absent, as maybe necessary; and the jury or jurors last summoned, 
shall be sworn and charged as those first summoned were, and shall 
have the same powers, and be liable to the same penalties. 

The witnesses examined upon the inquest, shall be sworn, as fol- 
lows, by the coroner, who is empowered to administer the oath, that 
is to say: "The evidence you shall give to this inquest, concerning the 
death of A. B., here lying dead, shall be the truth, the whole truth, 
and nothing but the truth; so help you God." 

The testimony of all witnesses examined upon an inquest, shall be 
taken doj^vn in writing by the coroner, and signed by the witnesses; 
and if the testimony given tends to criminate any person, as concerned 
in the death of the deceased, the coroner shall bind over the witness 
who gave it, in recognizance, with sufficient surety, to appear at the 
next Court of General Sessions to be holden for the district, to give 
evidence conceining the death; and such witness, for refusing to enter 
into recognizance, shall be committed by the coroner to the jail of 
the district, by warrant under his hand and seal, there to be kept until 
the session of the Court, or until he shall enter into recognizance, as 
required. 

The jury having viewed the body, heard the evidence, and made 
enquiry into the cause and manner of the death, shall render their 
verdict thereon, in writing, to the coroner, under their hands and 
seals, in the manner following, (which shall pass by indenture, inter- 
changeably between the coroner and jury,) that is to say: 

South -Carolina, ) 

District. ^ 

An inquisition indented, taken at , in , district, the day 

of , A. D., before A. B., coroner, (or C. D., magistrate, 

acting as coroner for said district,) upon view of the body of E. F., of 
, then and there being dead, by the oaths of (inserting the names 
of the jurors,) being a lawful jury of inquest, who being charged and 
sworn to enquire, for the State of South-Carolina, where and by what 
means the said E. F. came to his death, upon their oaths do say, &c., 
(inserting how, where, at what time, and by what instrument the 
deceased was killed;) and if it shall appear that the deceased was 
■wilfully killed by another, the inquisition must be concluded in this 
form: "And so the jurors aforesaid, upon their oaths aforesaid, do say, 
that the aforesaid J. K., in manner and form aforesaid, E. F., then 
and there feloniously did kill, against the peace and dignify of the 
same State aforesaid." 



LAW OF MAGISTRATES. 137 

If it shall appear that the deceased came to his death by means Finding in 

, , . , . . . . I II 111 rni 1 case of death 

unknown to the jurVi the inquisition shall conclude thus: " ihat the by means 
said E. F. was killed and murdered by seme person or persons 
(or by some means) to the jurors unknown, against the peace and 
dignity of the same State aforesaid." 

If it appear that he died by self-murder, the inquisition shall con- Finding in 
elude : " That the said E. F., in manner and form aforesaid, then and by self mur- 
there, voluntarily and feloniously, himself did kill, against the peace ' , 
and dignity of the same State aforesaid." 

If it appear that the deceased came to his death by mischance, the By 
finding shall conclude: "That A. B., in manner and form aforesaid, ""^*^*^"''^' 
came to his death by misfortune or accident." 

If the proof shall be, that the death was occasioned by the hands ofj}yij,g 
another, the conclusion shall be: "That I. K., the said E. F., by'^^^fij°[^ 
misfortune, and contrary to his will, in manner and form aforesaid, 
did kill and slay." 

After the conclusion above, according to the facts, the inquisition Form of sig- 
shall end in this form : " In witness whereof, I, coroner afore- 

said, and the jurors aforesaid, to this inquisition have interchangeably 
put our hands and seals, the day and year above mentioned. 

A. B., [l. s.] 

Coroner district. 
C, D., [l. s.] 

Foreman of the jury of inquest. 
E. F., &c,, . [l.s.] 

Jurors." 
If the finding of the inquest be wilful killing, by the hands, or means warrant in 
of another, the coroner shall forthwith issue his warrant, directed to ^g^! °* '"'^'^' 
the sheriff, or to one or more constables for the district, for all the 
persons implicated by said finding, which warrant shall be in this form: 
The State of South-Carolina. 

By A. B., Coroner, or C. D., Magistrate, acting as Coroner for 
district, to Sheriff of district. 

Whereas, by inquisition by me held, on (time and place inserted,) 
it was found that (here insert the finding of jury); these are therefore 
to command you, forthwith to apprehend (here insert the name or 
names of the accused) and bring him, or them, before me, to be dealt 
with according to law. Given under my hand and seal, this day 
of A.D., 

A. B., Coroner, [l.s.] 
or, C. D., Magistrate, acting as Coroner, [l. s.] 
18 



138 LAW OF MAGISTRATES. 



Commit- Upon the return of the said warrant, and the arrest of the party or 

meiit. . til 1 -I'l •!_ 

parties, the coroner shall proceed to commit him, by warrant, in the 
following form : 

To the Sheriff or Jailor of district. 

You are hereby commanded and required to receive and keep in 
close confinement, in the jail of your district, (here insert the name' 
of the party) charged before me by the finding of a jury of inquest, 
held on the day of A. D., at with (here insert find- 

ing,) until he (she or they) shall be deliv^ered by due course of law. 
Herein fail not. Given under my hand and seal, this day of 
A.D., 

A. B., Coroner, [l. s.] 
or, C. D., Magistrate, acting as Coroner, [l. s ] 
Sheriffs, etc., And all sherifl^s and jailors are hereby required to receive and keep 

to keep per- .> j i i 

Bons commit- securely, all persons so committed by the coroner. 

ted. J ' 1 ^ J 

If the findiuff of the inquest be, that the deceased came to his death 

To bird over . 

parly killing by rfiischance, by the hands of another, the coroner shall bind in recoe- 

by mis- i 'rr' • i 

chanr.e, and nizance, with sufficient surely, the party against whom the verdict has 

witnesses. 

been rendered, to appear at the next Court of Sessions for the district, 
that the matter may be then and there inquired into; and the coroner 
shall ..also bind over by recognizance, with good surety, all such wit-- 
nesses os were examined before the jury of inquest. 

Book of Every coroner shall keep a book, to be called " The Coroner's Book 

* of Inquisitions," in which he shall copy all inquests found within his 

district, together with the evidence taken before the jury, and all pro- 
ceedings had before or after their finding. 

Inquisition, The original inquisition and evidence, as taken by him, shall be 

returned to returned by the coroner, within ten days next after the finding thereof, to 
the clerk of the Court of Common Pleas, for the district in which it was 
found. 

Indorsement The coroner, before he returns such inquisition and evidence, shall 

on return, j^joj-ge the same in this form : ■ 

South-Carolixa, } 
District. ^ 

The State vs. the dead body of A. B. 

Inquisition taken this day of A. D., by coroner 

for said district, entered and recorded in Coroner's Book of Inquisitions, 

page this day of A. D., 

buryinga"' If any person sliall bury, or cause to be buried, the dead body of a 

inquiiy.'etc".^ person, supposed to have come to a violent death, before notice to the 



LAW OF MAGISTRATES. 139 

coroner to examine the body, find making inquiry into the manner 
and circumstances oFthe dealh, rs before directed, such person shall 
be liable to indictment therefor, before the Court of Sessions; and 
upon conviction, shall be fined and imprisoned, at the discretion of the 
presiding judge. 

If the coroner shall know, or be informed of the interment of the Body to be 

taken up, ttc. 

body of a person, supposed to have come to a violent dealh, he shall 
proceed to empanel a jury, as is herein before directed, and order such 
body to be taken up, and shall conduct his examination into the cause 
and manner of the death, as though such body had not been buried. 

If the body has been so long dead and buried, or so injured byRec&rdof 

1- II <-ii . body long 

improper keepmg, as that the cause of death cannot be ascertained, dead, etc. 
upon the examination,' the coroner shall make record of the fact, 
stating its condition, by whom and how long it had been kept or buried, 
the circumstances of the burial, and the identity, (if discovered); 
which record shall be entered in his book, and returned, as any other 
inquisition, to the clerk of ihe Court of General Sessions for the 
district. 

The person burying, or directing the burial of the dead body of one Ljabnityfor 
supposed to have come to a casual or violent death, without due notice to !^"[[j'Im 
the coroner, upon conviction thereof, by indictment in the Court of Ses- "'n""'y- 
sions, shall be liab'e to be fined and imprisoned, at the discretion of the 
Court. And the coroner shall bind him in recognizance, Avith sufficient 
surety, to appear and stand his trial at the ensuing term of said Court. 

The coroner shall keep an office at the Court House in his district, 

' Oflice, etc. to 

which shall have proper fixtures, and in which shall be kept his book ^f ^•^pt at 
of Inquisitions ; which book shall be public property, and shall be 
turned over to his successor in office. 

The sheriff of each district shall set apart in the jail, a room forgi,eriff toset 
the confinement of such persons as may be exclusively in the custody rate'^rop^P*' 
of the coroner, of which the coroner shall have exclusive control. "'jai'. 

The coroner shall be entitled to charge the following fees, and none pees. 
other : For every inquisition, eight dollars and fifty cents; for mile- 
age, (if over five miles from the coroner's residence) the same as is 
allowed to the sheriff, going and returning; for each warrant issued, 
fifty cents; for each commitment, fifty cents; for each recognizance* 
seventy-five cents; for each body disinterred, three dollars; for record, 
ing proceeding in each inquisition, in his book, twelve cents per copy 
sheet of ninety words. 

If the sheriff shall be a party, plaintiff or defendant, in any judicial 
process, execution, warrant, summons, or notice, to be served, or exe- 



140 



LAW OF MAGISTRATES. 



To act aa 
slieritt'iri 
cases ill 
which he is 
imerebted. 



And liurlng 
a vacancy. 



Person 

substituted 
for coroner 
ia certain 
cases. 



Coroner to 
enter in a 
suitable boolj 
his proceed- 
ings as 
slieriff. 



Not bound to 
act, except 
specially 
instructed, 
etc. 



Toinalse a 
list of 
prisoners. 



cuted within his district, the coroner shall serve or execute such 
process, execution, warrant, summons or notice: in the discharge of 
which duties, he shall incur such liabilities as would by law attach 
to their performance by the sheriff himself. 

If a vacancy shall occur in the office of sheriff, the coroner, during 
the continuance of such vacancy, shall assume the office, discharge 
its duties, incur its liabilities, and be entitled to its fees and emolu- 
ments; and shall, for such purpose, take charge of the books and 
papers of the office, and occupy the apartment allowed to the sheriff 
for transacting the business of his office. That for sufficient reasons 
shewn him, why the coroner cannot, or should not be employed, or 
on satisfactory evidence that the office of coroner is vacant, or that the 
coroner will not act, any judge of the Court of Common Pleas, or any 
chancellor, in open Court, or at chambers, may, at the instance and 
risk of any person having a right to control such process, appoint a 
suitable person to serve or execute any writ or process, mesne or 
final, sued, or to be sued, from any Court of law or equity in this 
State, against any sheriff; and such person having accepted the 
appointment, shall be entitled to receive the same process from the 
coroner, or other person having the possession of it ; and, as to 
the said process, shall be considered the coroner, and be vested 
with all the rights and powers, and liable to all the duties of the 
coroner. 

The coroner, while discharging the office of sheriff, shall provide a 
suitable book, in which he shall enter such executions or other papers, 
as he may be directed to enter by competent authority; and also all 
new writs, processes, executions, or other papers, proper to be entered 
by a sheriff; and also all his proceedings as sheriff, in manner and 
form, as sheriffs are required by law to do; which book, or certified 
copy thereof, he shall leave in the sheriff's office, as a record. 

The coroner shall not be bound to act upon any papers in the 
sheriff's office, except he be specially instructed: nor shall he be 
bound to embrace in his return to the clerk's office, any execution found 
in the sheriff's office, which is not entered in his book, or upon which 
he may not have taken any proceedings. 

As soon as the coroner shall enter upon the duties of sheriff, he 
shall, in the presence of the clerk of the Court, or jailor of the district, 
if there be one, make a list of the prisoners::! jail, signed by himself 
and the jailor, entered in the coroner's book, and the original lodged 
in the clerk's office. 



LAW OF MAGISTRATES. 141 

Upon retiring from the sheriff's office, he shall turn over the papers To turn over 
of the office, and the prisoners in jail, to a succeeding sheriff, in manner m succeeding 

sheriff, 

and form, as sheriffs may be required to execute the same duty. 

All acts, or parts of acts, repugnant to this act, are hereby Repealing 
repealed. Act of 1839. 



COSTS. 

[See Fees.] 



COUNTERFEITING. 

[See Forgery.] 



COURTS OF MAGISTRATES AND FREEHOLDERS. 

[See Apprentice, Causes Small and Mean, Dams, Forcible 
Entry and Detainer, Landlord and Tenant, Slaves and 
Free Persons of Color; or for the Organization of a Court 

UNDER any particular HEAD, SEE SUCH HEAD.] 



DAMS AND DRAINS. 

Dams in Rice Fields. 
Every person who shall keep water, during the winter, upon grounds 
on which rice shall be planted the ensuing spring, shall, on or before 
the 10th day of March next, and on the 10th day of March, in each 
year, open the dams which keep up the water, in a sufficient manner 
for letting off the same: and if any person shall neglect so to do, on opened 

" ' ■^ ^ ° ' ia March. 

or before the time aforesaid, he shall pay the sum of £100 for every 
such neglect, upon the complaint or information of any person, through 



LAW OF MAGISTRATES. 



"whose lands such ATater ma\ pass. And such person may inform and 
sue for the same in any Court of record in the district where such 
offence is committed, and on conviction, the one half thereof shall be 
paid to the informer, and the other half to the use of the poor of such 
parish or district in which the cause or complaint shall lie. Where 
any person has neglected to open his dams in a sufficient manner for 
letting the water off the grounds before described, on or before the 
10th day of March, in every year, any person v>ho may be affected 
thereby, may at any time after the day aforesaid in every year, either 
by himself, or his overseer, agent, attorney, or trustee, apply to any 
magistrate in the district for a warrant of survey, who shall thereupon 
notify to the defendant the complaint made against him, with the time 
and place of meeting, and summon three freeholders, disinterested 
persons ot the neighborhood or parish where the cause of complaint 
shall lie, one of whom shall be then chosen by the defendant; and in 
case of his refusal, then by the magistrate, another by the complainant, 
and the third by the magistrate; who, (being first sworn by such 
magistrate to determine the matter in dispute justly and impartially) 
shall forthwith proceed to view the obstructions complained of; and if 
on view thereof, the said freeholders, or a majority ot them, shall be 
of opinion that such obstructions do or may prevent the party com- 
plaining from planting his crop of rice in proper time, then the said 
freeholders, or a majority of them, may cause the same to be imme- 
diately opened, or removed in any way or manner they shall think 
necessary, for the purpose of giving the most effectual relief to the 
party complaining. Whereupon the defendant shall be obliged to pay 
all expenses attending such survey. Provided always, that nothing 
herein contained shall extend or be construed to extend, to impose any 
penalty on any person, or to cause his dams and banks to be opened, 
who shall have made through his own lands a sufficient drain or drains, 
(of which the said freeholders shall be the judges) to carry off the 
waters passing through the same, in as expeditious a manner as they 
could have passed through the natural courses or channels, in case no 
such banks had been erected- A. A., No. 1420. 

By an act to explain this act, it is said: Whereas doubts have arisen 
under the said act: Be it enacted, That nothing contained therein shall 
be construed to authorize any person or persons to keep water at any 
time on any land other than his, her or their own. A. A., 21 Dec. 
1799. 

Any person, at any time between the said 10th day of March, and 



LAW OF MAGISTRATES. 143 

the first day ot November, in every year, may apply in manner afore- 
said for a warrant to survey, on any obstructions which he may con- m"y have"^ 
ceive do impede the conveying of any surplus water on his rice grounds, ^'^'''^y- 
and which by remaining thereon may prove any way injurious; or 
shall at any time hereafter make or keep up any dams, which shall 
stop the course of any water so as to overflow the lands of any other 
person, (without the consent of such person first had and obtained,) 
and which shall be injurious to the said person, then, in either of such 
cases, the said magistrate and the freeholders by him appointed, shall 
proceed in the same manner as is directed in the foregoing clause. 
Provided always, that if in either of the cases last mentioned, the 
defendant shall neglect or refuse to attend at the survey, to choose a 
freeholder as aforesaid, then the three freeholders who shall have 
been summoned by the magistrate, shall proceed to determine the 
matter in dispute, in the same manner as if the defendant had been 
present, and had chosen a freeholder : which said freeholders, shall 
in both cases, certify to the said magistrate, under their hands, what 
shall have been by them done in the premises; the expenses attending 
which survey, shall be paid by the party against whom the award ol 
the said freeholders shall be given. — lb. 

If any person, either by himself or any other person for him, shall penalty for 
stop up any dam, or replace any obstructions which have been ordered ^'^Pjj"^'"^ 
to be opened or removed by any freeholders, or which have been 
opened or removed by himself or his overseer, agent, attorney or 
trustee, or by order of either of them, on the said 10th day of March, 
until the 10th day of July, every person so offending shall pay the sum 
of £200, to be recovered and disposed of in manner aforesaid; and 
if any person shall obstruct, impede, or otherwise hinder, or interrupt 
the opening of any dam, or the removing of any obstructions, ordered 
to be opened or removed by the freeholders, such person shall pay for 
every such ofTence, the sum of j£500, to be recovered and disposed of 
in manner aforesaid. — lb. 

Where any dams have been made, or shall hereafter be made, for 

.1 c c • ■ r . • , ^ W^aste way 

the purpose ot forming reservoirs of water, without a sufficient waste and weak 
way, and which now are or shall hereafter be found inadequate to 
sustain the weight of water against the same, the owner of such dams 
shall immediately, or as soon as may be, cause the same to be enlarged 
and strengthened, where they are already made; and such as may 
hereafter be made, to be erected in a substantial manner, with a suffi- 
cient waste way; and if any person shall neglect to strengthen his 
dam already erected, where necessary, or shall hereafter erect any 



144 LAW OF MAGISTRATES. 

for the purposes atoresaid, and which (in either case) in the 
opinion of three freeholders, or a majority of them, (to be appointed 
and to proceed in manner herein before mentioned, respecting the 
surveys of dams across rice grounds) is not made and regulated in 
manner hereby prescribed, every person so offending, shall, on com- 
plaint of any person liable to be affected thereby, and on conviction 
thereof in any court of record in the district where such offence is 
committed, pay the sum of £100 for every such offence; which may 
be suedTor, and if recovered, be disposed of in manner aforesaid. — lb. 
Every person to be summoned as aforesaid, shall be a resident in 
the parish where his attendance shall be required, and who, upon 
being duly summoned, and attending any survey as aforesaid, shall be 
entitled to receive the sum of 95. and 4cZ. per day, each, for every 
such attendance, to be paid by the person against whom the verdict 
of the freeholders shall be given: and in case of the non-attendance 
of any person, a resident, and summoned as aforesaid, (unless pre- 
vented by sickness, or some reasonable excuse, to be made upon oath 
to the satisfaction of such magistrate) he shall, without such sufficient 
excuse, pay the sum of £10 per day for every such neglect. — lb. 

1st. Summons to three Freeholders. 

District. > ss. 

Whereas information hath been this day made before me, I. P., 
one of the justices assigned to keep the peace for the district of , 

upon the oath of A. T., of , planter, that A. O., of the district of 
, having kept water during the winter upon grounds on which 
rice is to be planted the present spring, has neglected to open the 
dams (which kept up the water) in a sufficient manner for the letting 
off the same, to the damage of the said A. T. These are therefore 
to command you to summon A. B. , B. C, and C. D., disinterested per- 
sons of the neighborhood and residents, to be and appear at , in 
the district aforesaid, on the day of instant, at o'clock in 
the morning, to view the obstructions complained of, and to determine 
the matter in dispute between the said A. T. and A. O., and to return 
the same to me, under their hands and upon their oaths. Hereof fail 
not at your peril. Given under my hand and seal, at in the parish 
aforesaid, this day of , in the year 

I. P. 



LAW OF MAGISTRATES. 145 

2d. Notice to the person complained of. 

Mr. A. O., 

Sir, 
Information having been given me, on oath, by A. T., that you nave 
neglected to open your dam on or before the tenth day of Alarch 
instant, agreeably to the Act of Assembly, in that case made and provi- 
ded ; and the said A. T. having applied for a warrant of survey on 
such dam or obstructions; these arc therefore to notify to you, that 
A. R., B. C, and C. D., are summoned to viewihe said obstructions, 
on the day of at o'clock in the morning. Given under 

my hand, this day of in the year 1. P. 

Sd. The return of the freeJiolders. 

We, A. B., B. C, and C. D., freeholders of district, by 

virtue of a warrant under the hand of I. P., one of the justices assigned 
to keep the peace in and for the district aforesaid, dated the day 
of in the year went as directed by the said warrant, to [here 
mention the place] in ihe said district, and there (first being duly 
sworn) having viewed the said dam or obstructions, belonging to the 
said A. O., and which is now complained of by A. T., we are of 
opinion, that such dam or obstructions prevent A. T. from planting his 
crop office in proper time, and thereupon have caused the said dam 
to be immediately cut and opened. Given under our hands this 
day of in the year A. B. 

B. C. 

C. D. 

ith. Form of an execution to levy the cost of suit. 

District. > ss. 

By I. P., one of the justices assigned to keep the peace in the 
district of 

To any law^ful Constable. 

These are to charge and command you, that of the goods and chat- 
tels of A. O., of the district aforesaid, planter, you levy, or cause to be 
levied, the sum of lawful money of this State, for his costs, for a 

warrant of survey obtained by A. T., on the day of last past, 
for the purpose of viewing the dam of him, the said A. O., which he, 
the said A. O., had neglected to open, agreeable to the directions of 
the Act of Assembly in that case made and provided, as appears by the 
19 



146 LAW OF MAGISTRATES. 

return of A. B., B. C, and C. D., freeholders appointed for that 
purpose. Given under my hand and seal, this day of in the 
year I. P- [l. s.] 



DEAD BODIES. 

[See CoEONER.] 
Taking up jt has been holden, that it is an indictable offence to take up a dead 

dead bodies, ' 

even for the body, cven for the purpose of dissection. Upon an indictment for this 

pur| OSes of " - ' ' _ ' 

dissection, is offencc, it was moved, in arrest of iudgment, that if it were any 

an indictable , ' Jo' .' 

offence. crime, it was one of ecclesiastical cognizance only; that it was not 
made penal by any statute; and that the silence of Stamford, Hale 
and Hawkins, upon this subject, afforded a very strong argument to 
show that there was no such offence cognizable in the criminal courts. 
But the Court said, "that common decency required that the practice 
should be put a stop to; that the offence was cognizable in a Court 
as being highly indecent, and contra bonos mores; at the bare idea 
alone of which nature revolted. That the purpose of taking up the 
body for dissection, did not make it less an indictable offence; and 
that, as it had been the regular practice of the Old Bailey in modern 
times, to try charges of this nature, many of which had induced pun- 
ishment, the circumstance of no writ of error having been brought 
to reverse any of these judgements, was a strong proof of the univer- 
sal opinion of the profession upon this subject; and they, therefore, 
refused even to grant a rule to show cause, lest that alone should 
convey to the public an idea that they entertained a doubt respecting 
the crime alleged. 1 Russ., 414. 

Taking up to It is an offence against decency, to take a person's dead body, with 
intent to sell or dispose of it for gain and profit. An indictment 
charged (inter alia) that the prisoner a certain dead body of a person, 
unknown, lately before deceased, wilfully, unlawfully, and indecently, 
did take and carry away, with intent to sell and dispose of the same, 
for gain and profit: and it being evident that the prisoner had taken 
the body from some burial ground, though from what particular place 
was uncertain, he was found guilty upon this count. And it was 
considered that this was so clearly an indictable offence, that no case 
was reserved. — lb. 



LAW OF MAGISTRATES. 147 

The refusal or neglect to bury dead bodies, by those, whose duty The refusal 
it is to perform the office, appears also to have been considered as a bury dead 

T'li'- •• r 1 bodies. 

misdemeanor. Thus, Abney, J., in delivering the opinion of the , 
Court of Common Pleas, said : "The burial of the dead is (as 1 appre- 
hend) the duty of every parochial priest and minister; and if he neglect 
or refuse to perform the office, he may, by the express words of 
Canon LXXXVI, be suspended by the Ordinary for three months. 
And if any temporal inconvenience arise, as a nuisance, from the 
neglect of the interment of the dead corpses, he is punished also by 
the temporal Courts, by indictment or information. — lb. 

There is one case in which the too speedy interment of a dead bod}' The inter- 
may be an indictable offence; namely, where it is the body of a per- ^"^^^ v'oie'nt 
son who has died a violent death. In such case, by Holt, C. J., the th^ coroner is 
coroner need not go ex officio to take the inquest, but ought to be ^^°' °^' 
sent for, and that when the body is fresh; and to bury the body before 
he is sent for, or without sending for him, is a misdemeanor. It is 
also laid down, that if a dead body in prison, or other place, where- 
upon an inquest ought to be taken, be interred, or suffered to lie so 
long that it putrify before tho coroner has viewed it, the jailor or 
township shall be amerced. — Ibid. 



DEER. 

Any person who shall hunt with fire, in the night time, for every Penalty for 
such offence shall pay a sum not exceeding £2; and for every deer so '^ """"g- 
killed, a sum not exceeding £5; and for every horse or head of neat 
cattle, or other stock of any kind, a sum not exceeding £10; which 
may be recovered before any one justice of the peacp, and four disin- 
terested freeholders of the parish or county where the offence shall 
be committed; and when recovered shall be paid, one half to the use 
of the parish or county, and the other half to the informer, who shall 
sue for and recover the same; and if any person so convicted, shall 
refuse or neglect to pay such fine, then the justice before whom he 
shall be convicted, is required to commit such person to the jail in the 
county or district, where the offender shall have committed the said 
crime, there to remain without bail or mainprize, not exceeding three 
months. A. A., No. 1586. 



148 



LAW OF IMAGISTRATES. 



Liable to 
actiou. 



Slaves. 



Oath of 
freeholders. 



Any person who shall hunt with fire, in the night time, or kill any 
horse or neat cattle, or other stock of any kind, the property of another 
person, shall be liable to an action at law by the person so aggrieved, 
in addition to the above penalties. — lb. 

Incase any slave shall be detected in fire hunting, or shall kill, in 
the night time, any deer, horse or neat cattle, or stock of any kind, 
not the property of his owner, he shall, on conviction before any one 
justice, and four disinterested freeholders of the county or district 
where the offence was committed, receive such corporal punishment, 
not extending to life or limb, nor exceeding thirty-nine lashes, as they 
shall direct ; or in case that it shall appear upon evidence to the 
satisfaction of the Court, that the said offence was committed with the 
privity and consent of the owner or overseer of the said slave, such 
owner or overseer, as the case may be, shall be liable to the same 
penalty, fine and imprisonment, as if he had personally committed the 
said offence, to be recovered and applied in the same manner as is 
directed by the first clause. — lb. 

The four freeholders, previous to their entering on the trial, shall 
take the following oath or affirmation, before the justice who is err.- 
powered to administer the same. I, A. B., do swear, or affirm, (as 
the case may be) that I will, to the best of my judgement, without 
partiality, favour or aflection, try the cause now depending between 
A., plaintiiT, and B., defendant, and a true verdict give according to 
evidence : So help me God. — lb. 
Magistrate to It shall, and may be lawful, for any justice of the peace, before 
warrant "whom information shall be lodged of any breach of this ordinance, to 
issue his warrant to anylawful constable, commanding him to summon 
a sufficient number of disinterested freeholders, to appear at a certain 
time and place, for the purpose of hearing, trying and determinino- on 
the said information; and the freeholders so summoned, are hereby 
required to atteiid, on pain of forfeiting the sum of 10s. each, for 
neglect, to be sued and levied, and applied as herein before mentioned, 
by authority of the same justice of the peace, unless such defaulter 
shall give a good and sulEcient excuse, on oath, to the satisfaction of 
the said justice — lb. 
Tobereadat The captains of the several companies of militia are required to 
cause this ordinance to be read at the head of their respective com- 
panies, at least once in ten months, on pain of being chargeable with 
neglect of duty, and to be proceeded against as a court martial may 
direct. — lb. 



company. 



LAW OF MAGISTRATES. 149 

Any person convicted of killing does, between the first day of 
March and the first day of September, shall be liable to the fines, Killing Doea. 
forfeitures and penalties imposed by this ordinance, to be recovered 
and applied as is above directed" — lb. 



DEFAMATION. 

[See Libel.] 



DISCOUNT. 

By Act of 1759, 4th S. L., p. 76, made perpetual by Act of 1783, 
4th S. L., p. 541; Whereas, for the sake of justice, and to pre- 
vent a multiplicity of suits, that some rule should be established with 
regard to discounts in this Province: Be it enacted, therefore, by the Discounts 
authority aforesaid. That in all actions whatever, brought for the reco-, actions of iiie 
very of any debt, by any plaintifl", either in his own right or in the 
right of his wife, or as executor or administrator of any person 
deceased, against any defendant, either in his own right or in the 
right of his wife, or as executor or administrator of any person 
deceased, it shall and may be lawful for the defendant, if he have any 
account, reckoning, demand, cause, matter or thing against the plain- 
tifl^, to give the same in evidence, by way of discount; regard being 
always had to the cause of action, so that accounts, reckonings, 
demands, causes, matters or things, relating to the defendant, in .his 
own right, shall only be given in evidence, by way of discount, to 
actions brought against such defendant in his own right; and so if 
such defendant is sued in the right of his wife, or as executor or 
administrator of any person deceased; and the same shall be noted, and 
judgement be entered up for the balance only; and if the plaintiff be 
found to be indebted to the defendant, judgement shall be entered for 



150 



LAW OF MAGISTRATES. 



Twelve days 
notice of set- 
olito be 
given to 
plaintiff. 



No set -oft" 
allowed 
contrary to 
an act. 



Amounts 
above the 
jurisdiction. 



Notes and 

open 

accounts. 



Insolvent 
debtor. 



Debts due. 



Administra- 
tor. 



the defendant, with costs of suit, and execution go against the plain" 
tiff. Provided, nevertheless, that the defendant intending to discount 
any sum or sums of money, accounts, reckonings, demands, matters 
or things alledged to be due, and owing to him from the plaintiff, do 
make a copy of such sums, accounts, reckonings, demands, matters, 
causes, or things, which he intends to insist upon at the trial to have 
discounted, and deliver the same, with a notice of such intention, in 
writing, to the plaintiff or his attorney, at least twelve days before the 
trial of the cause, to the intent that the plaintiff may be prepared to 
disprove the same if he see fit; and the articles of such discount shall 
be proved to the Court where such cause shall be tried, in such man- 
ner as plaintiffs are obliged to prove their debts and demands. Pro- 
vided also, that no such discount or set-off shall be admitted or allowed 
contrary to the intention and meaning of an Act of the General 
Assembly of this Province, entitled, "An Act for settling the titles of 
the inhabitants of this Province to their possessions in their estates 
within the same, and for limitations of actions, and for avoiding suits 
in law," passed the twelfth day of December, one thousand seven 
hundred and twelve. 

1st. What causes of actions may be offered in discounts. 
Torts and trespasses are not discountable under oi'r discount law, 
only money transactions or mutual accounts. Gibbs vs. Mitchelb 

2 Bay, 351. 

No discount can be set off, the amount of which exceeds the juris- 
diction. Nor may the defendants withdraw a part of the discount in 
order to give jurisdiction. Wells ads Reynolds, 1 Tr., 478. 

A note, not negotiable, may be set up in discount by a party to 
whom it is assigned; Farr ads. Henningway; 2 Tr,, 753. But an 
open account may not. Brown vs. Thompson, 2 Mc, 476. 

In a suit by the assignees of an insolvent debtor, a person who owed 
the estate at the time of the assignment, cannot set up in discount a 
debt afterwards acquired. Assignees of Lowrie vs. Hinds, 3 Mc. 247. 

A debt to*be set off must be due and owing to the defendant at the 
time he was sued, and he will not be permitted to setup in discount, 
a demand acquired by him after suit brought. Shepherd vs. Turner, 

3 Mc, 249. 

2d. Against and by ichat Parties. 
An administrator may not be sued within nine months from the 
death of his intestate, yet if he sue, the defendant may, nevertheless, 
plead a discount. Cunningham vs. Baker, 2 N. & Mc, 399. 



LAW OF MAGISTRATES. 151 

In an action by an administrator, the defendant shall not be per- 
mitted to set off a demand which he acquired afl^r the death of the 
intestate, as it might disturb the order of distribution directed by law, 
in case of intestates' estates. Schmidts, administrator, vs. Crafts, 2 
Brevard, 266. 

The private debt' of one co-partner cannot be set off against ap^^jj^^j.^ 
demand of partnership. Powrie &; Dawson vs. Fletcher & Philips, 
2 Bay, 146. 

When a defendant is sued for articles sold him by an agent, he may 
not set up in discount a debt due him by an agent, if he knew ot 
the agency at the time he bought the articles, or if it came to his Agent, 
knowledge before the indebtedness of the agent to said defendant. 
Administrators of W. Conyers vs. John Magrath, 4 McCord, 392. 



DISFIGURING. 

[See Cattle, Malicious Mischief, Mayhem, &c.] 



DISORDERLY HOUSES. 

All disorderly inns or ale-houses, bawdy houses, gaming houses, 
play houses, unlicensed or improperly conducted, booths and stages for P'^"''''"'^ 
rope dancers, mountebanks, and the like, are public nuisances, and 
may therefore be indicted. 1 Russ., 298. 

1st. Of Inns. 
It seems to be agreed that the keeper of an inn may, by the common 
law, be indicted and fined as being guilty of a public nuisance, if he 
usually harbor thieves, or persons of scandalous reputation, or suffer 
frequent disorders in his house, or take exorbitant prices, or set up a 
new inn in a place where there is no manner of need of one, to the 
hindrance of other ancient and well governed inns, or keep it in a 
place in respect of its situation, wholly unfit for such a purpose. And 
it seems also to be clear that if one who keeps a common inn, refuse 
either to receive a traveller as a guest into his house, or to find him 
victuals or lodging, upon his tendering him a reasonable price for the 



152 LAW OF MAGISTRATES. 

same, he is not only liable to render damages to the party in an action, 
but may also be indicted and fined at the suit of the king; and it is 
also said that he may be compelled by the constable of the town to 
receive and entertain such a person as his guest; and that it is in no 
way material whether he have any sign before his door or not, if he 

make if his common business to entertain passengers lb. 

The keeping of an inn is no franchise, but a lawful trade, when 
not exercised to the prejudice of the public; and therefore there is no 
need of any license or allowance for such erection. But if an inn use 
the trade of an ale-house, as almost all inn-keepers do, it will be within 
tbe statutes made concerning ale-houses. — lb. 

■2d. Of Bawdy Houses. 

It is clearly agreed that keeping a bawdy house is a common nui- 
sance, as it endangers the public peace, by drawing together dissolute 
and debauched persons; and also has an apparent tendency to corrupt 
the manners of both sexes, by such an open profession of lewdness. 
And it has been adjudged that this is an offence of which a feme 
covert may be guilty, as well as if she were sole, and that she, toge- 
ther with. her husband, may be convicted of it; for the keeping of the 
house does not necessarily import property, but may signify that share 
of government which the wife has in a family as well as the husband; 
and in this she is presumed to have a considerable part, as those mat- 
ters are usually managed by the intrigues of her sex. If a person be 
only a lodger, and have but a single room, yet if she make use of it to 
accommodate people in the way of a bawdy house, it will be a keep- 
ing of a bawdy house, as much as if she had a whole house. But an 
indictment cannot be maintained against a person for being a common 
bawd, and procuring men and women to meet together to commit 
fornication; the indictment should be for keeping a bawdy house. 
For the bare solicitation of chastity is not indictable, but cognizable 
only in Ecclesiastical Courts. — lb. 

Keeping such houses are also offences against certain statutes, for 
ivhich, see titles Bawds and Gaming. 



DISTRESS. 

[See Landlord and Tenant. 

What is. ^^ ^^^ taking of a personal chattel out of the possession of a wrong 

doer, into the custody of the party injured, or of an officer of the law, 



LAW OF MAGISTRATES. 153 

to procure a satisfaction of the wrong committed, or the payment of 
a penalty, and it lies either for cattle trespassing, or for non-payment 
of rent, or for penalties under certain statutes. 

1st: For lohat causes a distress shall be. 

Distress for rent must be, for rent in arrear; therefore it may not Rent in 
be made on the same day on which the rent becomes due ; for if the ''"'^*''* 
rent is paid in any part of that day, whilst a man can see to count 
money, the payment is good. 

It must not be after tender of payment ; for if the landlord come to After tender, 
distrain the goods of his tenant for rent behind, before the distress, 
the tenant may upon the land, tender the arrearages; and if after thit 
a distress be taken, it is wrongful ; and if the landlord have distrained, 
if the tenant, before the impounding thereof, tender the arrearages, 
the landlord ought to deliver the distress, and if he doth not, the 
detainer is unlawful. Even so it is, in case of a distress for damage 
feasant, (or damage done by cattle trespassing) the tender of amends 
before the distress maketh the distress unlawful ; and after the distress, 
and before the impounding, the detainer unlawful. 2 Inst., 107. 

But in this case, although the owner tender sufficient amends, yet 
he cannot take his beasts out of the pound, if the amends be refused; 
but he must replevy; and if it be found at the trial that the amends 
were not sufficient, the person on whom they trespassed shall have 
damages; if the amends tendered were sufficient, then the owner of 
the beasts shall have damages. Dr. and St., 112. 

On a parol demise or verbal lease, where the quantum of the rent parol lease. 
agreed upon can appear in certain, the landlord may distrain. But 
as there are often difficulties, when the agreement is not by deed, the 
landlord, in such case, may recover a reasonable satisfaction in an 
action on the case, for the use and occupation of the lands. And if 
on the trial, any parol demise, or any agreement (not being by deed) 
whereon a certain rent was reserved, shall appear, the plaintiff shall 
not therefore be nonsuited, but may make use thereof as an evidence 
of the quantum of the damages to be recovered. 11 Geo. 2, c. 19, 
§ 14. Although this statute is not of force here, the same mode of 
proceeding would be allowed in our Courts. 

Persons having rent in arrear, upon any lease determined, may Lease ended, 
distrain for such arrears after the determination of the lease, in the 
same manner as if it had not been determined. Provided, that such 
distress be made in six calendar months' after the determination of. 
such lease, and duiing the continuance of such landlord's title or 
20 



154 



LAW OF MAGISTRATES. 



Notice to 
quit. 



interest, and during the possession of the tenant from whom such 
arrear became due. 8 An., c. 14, s. 6, 7, 
Hoidingover. All tenants, whether for life or years, by sufferance or at will, or 
persons coming in under or by collusion with them, who shall hold 
over after the legal determination of their estates, after demand made 
in writing for delivering possession thereof, by the person having the 
reversion or remainder therein, or his agent, such tenant or other 
person, holding over for the space of six months after such demand, 
shall forfeit double the value of the use of the premises, recoverable 
by action of debt or other legal action, or by distress, as in cases of 
'rent reserved and payable quarter yearly. A. A., 1H08. 

In case any tenant shall give notice in writing, of his intention to 
quit the premises, and shall not accordingly deliver up the possession, 
at the time in such notice contained, the said tenant, his executors or 
administrators, shall pay to the landlord double the rent which he 
would otherwise have been liable to pay, which shall be recovered in 
manner aforesaid. Provided, nevei-theless, that nothing herein con- 
tained shall be construed to give such tenant a right to discontinue or. 
determine his tenancy by such notice, in any other manner than 
according to the laws heretofore existing. — lb. 

And where a distress is made by virtue of a warrant of a justice 
of peace in nature of an execution, the distress may be renewed, if 
insufficient at fir^t ; for a man may mistake the value of the goods 
seized, or their value may be uncertain or imaginary, or the person 
making the distress may barely take what he thinks enough, through 
tenderness and moderation; and it is better for the owner that he 
should have the liberty of seizing again, 'for if he is to be precluded 
from making up the deficiency, he will certainly take care not to 
seize too little at first. Bur., 589. 

2d, What goods may he distrained, and ichat not. 

Distress for rent must be of a thing whereof a valuable property is 
in some body; and therefore dogs, bucks, conies and the like, that 
are ferce nalurce, cannot be distrained. 1 Inst., 47. 

Although it be of valuable property, as a horse, yet when a man 
or woman is riding on him, or an axe in a man's hand, cutting of 
wood, and the like, they are for that time privileged, and cannot be 
distrained. 1 Inst., 47. 

But it is said, that if one be riding upon a horse, damage feasant, 
the horse may be led to the f)ound with the rider upon him. 1 Sid., 
440, 442. 



Second 
distress, 



Property in 
use. 



LAW OF MAGISTRATES. 155 

And it hath been held, that horses joined to a cart, with a man upon 
it, cannot be distrained for rent, (although they may for damage 
feasant) but both cart and horses may, if the man be not upon the 
cart. 1 Vent. , 36. 

Valuable thirfws shall not be distrained for rent, for benefit of trades, i" the way 

- . _ _ of trade. 

and which are there by authority of law; as a horse in a smith's shop 
shall not be distrained for the rent of the shop, nor a horse in a hostry, 
nor the materials in a weaver's shop for making of cloth, nor cloth 
or garments in a tailor's shop, nor sacks of corn or meal in a mill, 
nor any thing distrained for damage feasant; for it is in the custody of 
the law, and the like. 1 Inst., 47. 

It has also been determined by the Court of Common Pleas, in this 
State, that a negro boy slave, apprenticed to a hair dresser, was not 
liable to be distrained for rent. May term, 1791. 
M. Furnaces, cauldrons, or other things fixed to the freehold, or the Furnaces, 
doors or windows of a house, or the like, cannot be distrained. j>no"eyi^*^- 
Inst., 47. Things for which a replevin will not lie, so as to be 
known again, as money out of a bag, cannot be distrained. 2 Bac. 
Abr., 109. 

But money in a bag, sealed, may be distrained ; for that the bag 
sealed may be known again. 

By the 2 W. Ses., 1, c. 5, persons having rent arrear, on any 
demise, lease, or contract, may seize and secure any sheaves, or 
cocks of corn, or corn loose or in the straw, or hay being in any Com, etc. 
barn or granary, or upon any hovel, stack or rick, or otherwise upon 
any part of the land charged with rent, and may lock up or detain the 
same, in the place where-found, in the nature of a distress, so as the 
same be not removed to the damage of the owner, out of the place 
where found and seized, but be kept there (as impounded) till reple- 
vied or sold. S. 3. 

Generally, whatever goods and chattels the landlord finds upon the Godson the 
premises, whether they in fact belong to the tenant or a stranger, are 
distrainable by him for rent; for otherwise, a door would be opened 
to infinite frauds upon the landlord; and the stranger hath his remedy 
over by action on the case, against the tenant, if by the tenant's default 
the goods are distrained, so that ho cannot render them when called 
upon. 3 Black., c. 1, p. 8. 

But on particular circumstances, perhaps a Court of equity maygi^g^pj^ 
relieve, as in the case of Fowkes and Joyce; T. 1 W. In the com- p*^'"'^* 
inon pleas, a person driving sheep to London to sell, by agreement 
■with a master of an inn, put them into ground at so much a score for 



LAW OF MAGISTRATES. 



a night: the landlord seeing them, asked whose they were, but 
consented to their staying there, and afterwards distrained them, for 
rent due to him from the master of the inn, and it was adjudged for 
the landlord. 3 Lev., 260; 2 Ventr., 50. 

But in the same case, upon a bill for relief in etjuity, the lords 
commissioners seemed to think, that grounds lying to the inn, and 
used therewith, ought to have the same privilege as the inn hath, and 
that passengers' cattle ought not to be distrainable there. 2 Vern., 
129. And it appeared in this case, that on the landlord's coming 
and seeing the sheep, he pretended t^o be angry; upon which the 
owner offered to take out the sheep, at which time they were not 
distrainable for the rent, having not been levant and couchant; (that 
is, having not so long remained upon the ground as to have laid 
down, and risen up again, to feed.) so (hat the Court looked on the 
consent as a fraud, to get them to be left all night, by which they 
became liable to the distress : and it was decreed that the landlord 
should answer for the value of the sheep, and pay costs, both in law 
and equity. Prac. Chan., 7. 

Another exception has been made likewise, by the Courts in this 
State. In August, 1790, Himeli replevied some goods wh'ch he had 
sent to Cohen, a vendue-master, to dispose of for him at public auction, 
and which had been seized for house rent by Wiatt and Richardson; 
the Court resolved, that goods lodged with such an intent in a vendue 
master's store, were not liable to distress for rent. 

Where a stranger's beasts escape into the land, they may be dis- 
trained for rent, though they have not been levant and couchant, 
provided they are trespassers; but if the tenant of the land is in 
default, in not repairing his fences, whereby the beast came into the 
land, the landlord cannot distrain such beasts, though they have been 
levant and couchant, unless he have caused notice to be given to the 
owner, and the owner suffers them to remain there afterwards. 
Lutw., 364. 

In case of rent reserved upon a lease for years, the landlord cannot 
distrain such cattle, until they be levant and couchant; for if the land- 
lord had had the lands in his own hands, he ought to have repaired the 
fences; and when he puts in a lessee, he ought, by covenant, to oblige 
him to repair; and therefore in that case, if the law would allow the 
landlord to distrain the cattle of a stranger, which come in by escape, 
before that they be levant and couchant, it would be in effect to allow 
a man to take advantage of his own wrong. Therefore if the cattle 
come in, by default of the owner of the cattle, then they may be dis- 



LAW OF MAGISTRATES. 157 

trained before they be leiiant and couchanf; and if in default of the 
tenant of the land, there they cannot be distrained, until they have 
been levant and couchant; that is to say, for rent upon leases for years. 
And in such case, the landlord shall not take the cattle before he has 
given notice to the owner, that they are upon the land liable to his 
distress; and if he doth not come to take them away, then they become 
distrainable. And by Treby, C. J., where the cattle escape acci- 
dentally, they are not distrainable until they have been levant and 
couchanf; but if they escape by default of their owner, they are dis- 
trainable the first minute. — lb. 

By Act of 1800, 7th S. L., 435, no slave shall be liable to be dis- giave of 
trained, or shall at any time be distrained for house rent, or any other j\"bie""°' 
rent, unless such slave shall bona fide belong to guch person as may 
be liable to, or chargeable with, such rent. 

Of which it has been held, that a slave, under mortgage, may not ^"[j^'^^^^j 
be distrained for rent; Trescott vs. Smith, 1 Mc. Ch., 486. 

The Act of 1823, exempting certain articles of debtors Irom levy Articles 
and sale, (for which see Execution,) includes as well levies and sales 
under distress warrants for rent, as under executions; Caulfield vs. 
McAUiston, 4 Mc, 378. 

3d. At what time the distress shall be taken. 

For rent, the landlord cannot distrain in the night, but in the day Not in the 
time; but for damage feasant, one may distrain in the night; other- 
wise it may be, the beasts will be gone before he can take them. 1 
Inst., 142. 

If a man come to distrain, and see the beasts in his soil, and the 
owner chase them out, of purpose, before the distress taken, yet the if beasts 
owner of the soil cannot distrain them; if he doth, the owner of the*^'^'*^^' 
cattle may rescue them, for the beasts must be damage feasant at the 
time of the distress, 1 Inst., 161. 

Before sun rising or after sun set, no man may distrain, but for 
damage feasant. Mirrour, c. 2, sect. 26. 

And if any tenant for life, years, at will, sufferance or otherwise, goods 
shall fraudulently or clandestinely convey ofTthe premises, his goods or '^^'"°^^ ' 
chattels, to prevent a distress, the landlord, or any person lawfully 
empowered by him, may in five days next after such conveying away, 
seize the same wherever they shall be found, and dispose of them in 
such manner as if they had been distrained on the premises. § 2. 

4</t. That reasonable distress shall be taken. 
Distresses shall be reasonable, and not too great; and he that 



158 LAW OF MAGISTRATES. 

takelh great and unreasonable distresses, shall be grievously amerced. 
52 H. 3, c. 4. 

For example; if the lord distrain two or three oxen for 12d., or the 
like small sum, and the owner bring a replevy of the oxen, and the 
lord avow the taking of them for the 12d. of his own showing, he shall 
make fine, or the party may have his action upon this statute. 2 
Inst., 107. 

If the lord distrain an ox or a horse, for a penny, if there were no 
other distress upon the land holden, the distress is not excessive; but 
if there were a sheep, or a swine, or the like, then the taking of the 
ox or horse is excessive, because he might have taken a beast of less 
value. 2 Inst., 107. 

The remedy for excessive distresses is by a special action on the 
statute of Marlbridge; for an action of trespass is not maintainable upon 
this account, it being no injury at the common law. 3 Black. Com. 12. 

5th Manner of making Distress. 

Gates or enclosures may not be broken open, nor thrown down to 
Nit to break . •' ^ 

doors or make a distress. 1 Inst., 161. 

gates. 

Nor may the lessor enter into the tenant's house, unless the doors 
are open. Read, Distr., 3 Bac. Abr., 111. 

Upon a question, about taking a distress, it was held by the lord 
chief justice Hardwicke, at the summer assizes at Exeter, 1735, that 
a padlock put on a barn door could not be opened by force, to take 
the corn by way of distress. Via. Distr., (E. 2.) 6. 

But if the outer door of an house is open, one may break an inner 
door to take a distress. Cases in the time of Lord Hardwicke, 168. 

If a landlord comes into a house, and seizes upon some goods, as a 
distress, in the name of a'll the goods of the house, that will be a good 
' seizure of all. 6 Mod., 215. 

6th, Distress how to he demeaned. 

oiuof the ^y ^^® ^^ ^' ^' ^' **' "°"^ ^^^^^ cause any distress that he hath 
county. taken, to be driven out of the county where it was taken; and if one 
neighbour do so to another, of his own authority, (as for damage fea- 
sant, or rent charge, 2 Inst., 106,) he shall make fine, as for a thing 
done against the peace; and if the lord so presume, to do so against 
the tenant, he shall be grievously punished by amerciament. 

Before this act, at the common law, a man might have driven the 
distress to what county he pleased, which was mischievous, for two 
causes; 1st. Because the tenant was bound to give the beasts, being 
impounded in an open pound, sustenance, and being carried into ano- 



LAW OF MAGISTRATES. 159 

ther county, by common intendment, he could have no knowledge 
where they were: 2d. He could not know where to have a replevy, 
but the party was before this statute driven to his action upon his 
case. 2 Inst., 106. 

Cattle distrained may not be worked or used, unless for the owner's 
benefit, as a cow milked, or the like; much less may they be abused Nor used, 
or hurt. Cro. Jac, 148. 

llh. Of rescous and pound breach. 

By the common law, if a man break the pound, or the lock of it, or 
part of it, he greatly offendeth against the peace, and doth trespuss to Law. 
the State, and to the sheriffs in breach of the peace, and to the party, 
and to the delaying of justice; and therefore hue and cry is to be levied 
against him, as against those who break the peace. Mir. c. 2, s. 26. 
And the party who distrained, may take the goods again, wheresoever 
he shall find them, and impound them again. 1 Inst., 47, 

And by statute, on any pound breach, or rescous of goods distrained 

-' ' J r o By statute. 

for rent, the person grieved thereby, shall, in a special action upon 
the case, recover treble damages, and costs against the offender, or 
against the owner of the goods, if they be afterwards found to have 
come to his use or possession. 2 W. c. 5, s. 4. 

In the case of Sir Wilfred Lawson vs. Story, M. 6 W. It was 
adjudged that the costs shall be trebled, as well as damages. L. 
Raym., 20. 

When a man hath taken distress, and the cattle distrained, as he is 
driving them to the pound, go into the house of the owner; if he that 
took the distress demand them of the owner, and he deliver them not, 
this is the rescous in law. 1 Inst., 161. 

8th. Replextying the distress. 

All writs of replevin shall be returnable immediately, and it shall writs 
be the duty of the respective sheriffs in whose offices they shall be once, 
lodged, to make return thereof accordingly. A. A., 1808. 

The plaintiff or plaintiffs in all actions of replevin, shall be bound 
to declare, within one month from the lodgement of the writ in the 
sheriffs office, without any rule or notice for that purpose; and Q^Decaralon. 
failure of the sheriff to make return thereof, within the period afore- 
said, the plaintiff or plaintifl^s is or are hereby authorized to substitute 
the same as in cases of loss; and in case the said plaintiff or plain- 
tiffs shall not declare within the period aforesaid, the defendant or 
defendants shall be at liberty to enter up judgement of wora pross. , and 
proceed as in such case is provided by law. — lb. 



160 LAW OF MAGISTRATES. 

And the sheriff, or other officer having authority to grant replevins, 
Bond. shall, in every replevin of a distress for rent, take, in his own name, 

from the plaintiff, and two sureties, a bond in double the value of the 
goods distrained, to be ascertained on the oath of one witness, and con- 
ditioned for prosecuting the suit with effect, and AAithout delay, and 
for duly returning the goods distrained, in case a return shall be awar- 
ded, before any fleliverance be made of the distress: and the sheriff 
shall assign such bond to the avowant, or person making conusance. 
11 G. 2, c. 19, s. 23. 

In all cases of replevin, the security given by the plaintiff shall be 
Liability of bound and obliged, not only for the return of the goods distrained, but 

surety. _ o ' J ... 

also in case the said goods shall be insufficient to satisfy the rent for 
which the distress is made, or in case the same shall be eloigned, for 
the full amount of the rent for which the distress shall be made, and all 
costs of suit which may be adjudged against the plaintiff in the action; 
and it shall be the duty of the sheriff executing the writ of replevin, 
to take bond and security according to law, for such amount as shall 
be sufficient to cover all such sums. A. A., 1803. 

9th. Sale of the Distress. 
In five days. Where any goods shall be distrained for rent, upon lease or contract, 
and the tenant or owner of the goods distrained, shall not, within five 
days after such distress taken, and notice thereof, (with the cause of 
such taking) left at the chief mansion house, or other most notorious 
place on the premises, replevy the same; in such case, the person 
distraining shall, with the constable of the parish or place where such 
distress shall be taken, cause the goods or chattels so distrained to be 
appraised by two appraisers, sworn to appraise the same trul^', accor- 
dingto the best of their understandings; and after such appraisement, 
shall sell the same for the best price can be gotten for them, for satis- 
faction of the rent, and charges of the distress; leaving the overplus, 
if any, with the constable for the owner's use. 2 W. sess., 1 c. 5. 

10//t. Case of tenant holding over. 
By the 8 Ann,, c. 14. Whereas, tenants pour autre vie (that is, 
holding during the life of another person,) and lessees for years, or at 
will, frequently hold over alter the determination of the lease; and 
whereas, after* the determination of such, or other leases, no distress 
can be made for arrears of rent, that grew due on such leases, before 
the determination theV^of; it is therefore enacted, that it shall be law- 
lul to distrain after the determination of such lease, in the same 
manner as if it had not been determined; provided that the distress be 



/law of magistrates. ■ «* 

made within six calendar months after the determination of the lease, 
and during the continuance of the landlord's title or interest, and during 
the possession of the tenant from whom such arrear became due. S. 
6,7. 

A lease at will is understood to be for a year certain ; and if a 
tenant takes from year to year, either party must give reasonable 
notice before the end of the year ; which reasonable notice varies 
according to the custom of different countries. Burr. Reports, 1609. 

11th. Rent in case of an execution. 

By the 8 Ann., c. 14; no goods being on any messuage, lands, or cooda not to 
tenements leased for life, term of years, at will, or otherwise, shall be unfiuwit 
liable to be taken by execution, unless the party at whose suit the P^"^' 
execution is sued out, shall, before the removal of such goods from 
off the premises, pay to the landlord, or his bailiff, all such rent as 
shall be then due, for the premises; provided, that it amount not to 
more than one year's rent; and if the arrears shall exceed one year's 
rent, then the party paying such landlord one year's rent, may proceed 
to execute his judgement. S. 1. 

And in case of two executions, there shall not be two year's rent 
paid to the landlord ; for the intent of the act was to reserve to the 
landlord only the rent for one year; and it was his own fault if he let 
more run in arrear; therefore one year's rent to the landlord being 
paid to him on the first execution, the sheriff is not to levy, for him 
again, any thing on a subsequent execution. Str., 1024. 

If a landlord does not distrain, himself in person, he should empower 
a constable to levy by distress, as follows: 

Know all men by these presents, that I, A. B., do hereby authorise 
and appoint B. C, to take any person or persons to his assistance, 
and enter into the house (or plantation) of C. D., and there to make 
distress of all such goods and chattels as are upon the premises, for 
pounds, for one quarter's rent (or one year's rent, as the case is) 
due to me, on and after the said goods are so 

distrained, if the said C. D. doth not, within the time limited in the 
statute for that purpose made, replevy the same, or pay the said rent, 
then and in such case, I do hereby authorise you to cause the said 
goods to be appraised, sold and applied, as by the said act is directed; 
and for your so doing, this shall be your warrant. Witness my hand 
and seal, this day of in the year 

A. B. [l. s.] 

When the goods are distrained by virtue of the above power, the 
21 • 



LAW OF MAGISTRATES. 

constable or attorney employed, should immediately order them to be 
locked up in one of the rooms of the house, or removed off the premi- 
ses, as shall be thought most safe, first taking an inventory, which 
must be entitled in this manner : 

An inventory of the several goods that were seized and distrained 
by me, whose name is underwritten, in the house (or plantation) 
of in street, in Charleston, (or any other place) by an 

authority of to me for that purpose given, for pounds, for one 

quarter's (or one year's) rent, due on the day of 

Avhich goods were seized the day of instant, for the use 

of the said 

Imprimis^ in the cellar, &c. 

In the lower rooms, &c. 

In the upper rooms, &;c. 

In the kitchen, &c. 
This inventory must be signed by the appraisers, and by the con- 
stable or other person employed. 

"^^^ S Sworn appraisers. 
Constable. 



Together with the copy of the above inventory, the tenant must 
receive the following note : 

Notice. 
A. T., 

Take notice, that by the authority, and on the behalf of your landlord, 
A. L., I have this day of in the year distrained the several 
goods and chattels specified in the schedule annexed, in your houses, 
out-houses, and grounds, at for pounds arrear of rent due 

to him, the said A. L.; and if you shall not pay the said rent so due, 
and in arrear as aforesaid, or replevy the said goods and chattels, I 
shall, after the expiration of five days from the date hereof, cause the 
said goods and chattels to be appraised and sold, according to the 
statute, in that case made and provided. Given under my hand, the 
day and year first above written. A. D. 

Witness, that a copy hereof was this day delivered to the said A. 
T., (or left at the chief mangion-house of the said A. T.) 

A. W. 
Appraiser's Oath. 

You, and each of you, shall well and truly appraise the goods and 
chattels mentioned in this inventory, according to the best of your un- 
derstanding : So help you God. 



LAW OF MAGISTRATES. 163 

Form of the Appraisement. 
The appraisement may be in the form of the inventory, specifying 
the particulars, and their respective valuation, and then add at the end: 
Appraised by us, this day of in the year 

r' p' \ ^^^orn appraisers. 

N. B. The person distraining, must take care to keep a copy of the 
inventory, appraisement and notice. 

Landlords should always take care to get the tenant to acknowledge 
the terms of his tenure, in presence of witnesses, or else reduce the terms 
into writing. 



DOGS. 

A mastiff going into the street unmuzzled, from the ferocity of hispo'ng"' 
nature, being dangerous and a cause of terror to the citizens of the 
State, seemeth to be a common nuisance, and consequently, the owner 
may be indicted for suffering him to go at large. 

If a man has a dog that kills sheep, this is not a public nuisance, Killing 
but the owner of the dog (knowing thereof) is liable to an action; but 
if he is ignorant of such quality, he shall not be punished for this kill- 
ing : and in an action upon the case for such killing, the plaintiff shall 
be required to prove in evidence, that the dog had used to kill sheep. 
Dyer, 25; Het., 171. 

And in order to maintain an action for biting by the defendant's Diuag. 
dog, it must be proved also, that he knew his dog to be used to bite ; 
but one instance is sufficient in that case. 12 Mod., 555. 

And if a man keeps a dog accustomed to bite sheep, and he knows 
it, and notwithstanding he keeps the dog still, and afterwards the dog 
bites an horse, this shall be actionable, although he had been known 
before to bite sheep only ; because the owner, after notice of the first 
mischief, ought to have destroyed or hindered him from doing any 
more hurt. Ld. Raym., 110. 



DRUNKENNESS. 

1st. How far an excuse for crime. 
With respect to a person nan compos mentis from drunkenness, a 
species of madness which has been termed dementia ajfectata, it is r 



164 



LAW OF MAGISTRATES. 



Not if 
voluntary. 



By others. 



If frenzy be 
fiied. 



\Vhere 
malice is in 
question. 



Persons 
found dnmk. 



settled rule, that if the drunkenness be voluntary, it cannot excuse a 
man from the commission of any crime, but on the Contrary, must be 
considered as an aggravation of whatever he does amiss. Yet if a 
person, by the unskilfulness of his physician, or by the contrivance 
of his enemies, eat or drink such a thing as causes frenzy, this puts 
him in the same condition with any other frenzy, and equally excuses 
him ; also, if by one or more such practices, an habitual or fixed 
frenzy be caused, though this madness was contracted by the vice and 
will of the party, yet the habitual and fixed frenzy caused thereby, 
puts the man in the same condition as if it were contracted at first 
involuntarily. And, though voluntary drunkenness cannot excuse 
from the commission of crime, yet where, as upon a charge of murder, 
the material question is, whether an act was premeditated, or done 
only with sudden heat and imr.ulse, the fact qf the party being intoxi- 
cated, has been holden to be a circumstance proper to be taken into 
consideration. 1 Russell, p. 8. 

2d. How Punished. 
By Act of 1691, 2d S. L., p. 69; and whereas, the odious and loath- 
some sin of drunkenness hath of late grown into common use within 
this province, being the root and foundation of many other enormous 
sins; Be it therefore enacted, that every person and persons that shall 
be found drunk, shall forfeit the sum of five shillings for every such 
offence. 



DUELLING 



Definition. Is the fighting betw-een two persons by agreement, upon some 
quarrel precedent. 1 Tomlins, 589. 

1st. Of the offence at Common Law. 

If either party in a duel be killed, the other principal and seconds 
are guilty of murder, and this, whether the seconds fight or not. H. 
P. C, 47,51. 

If two persons quarrel over night, and appoint to fight the next day, 
or quarrel in the morning, and agree to fight in the afternoon , or such 
a considerable time after, by which it may be presumed the blood was 
cooled, and they meet and fight a duel, and one kill the other, it is 
murder. 3 Inst., 52; H. P. C, 48; Kel., 66. And whenever it 



When 
killing by, 
murder. 



LAW OF MAGISTRATES. 165 

appear that he who kills another in a duel, or fighting on a sudden 
quarrel, was master of his temper at the time, he is guilty of murder; 
as if after the quarrel, he fall into another discourse and talk calmly 
thereon, or alledge that the place where the quarrel happens, is not 
convenient for fighting; or that his shoes are too high if he should 
fight at present, &c. Ke]., 56; 1 Lev., 180. 

If one challenge another, who refuses to meet him, but tells him Where 

, , J . challenge is 

that he shall go the next day to such a place about business, and then not accepted. 
the challenger meets hi;m on" the road and assaults the other; if the 
other in this case kill him, it will be only manslaughter; for there is 
no acceptance of the challenge or agreement to fight; and if the person 
challenged refuseth to meet the challenger, but tells him that he wears 
a sword, and is always ready to defend himself, if then the challenger 
attack him and is killed by the other, it is neither murder nor man- 
slaughter, if necessary in his own defence. Kel., 56. 

If one kill another in a deliberate duel, under provocation of charges 
against his character and conduct, however grievous, it is murder in charges 
him and his seconds; and therefore the bare incitement to fight, ^aracter. 
though under such provocation, is in itself a very high misdemeanor, 
though no consequence ensue thereon against the peace. 3 East's 
Rep., 581. 

An endeavor to provoke another to commit the misdemeanor of 
sending a challenge to fight, is itself an indictable misdemeanor, parti- ^^'2,^^^^^'' '° 
cularly where such provocation is given by a writing, containing 
libellous matter, and alledged to have been done with intent to do the 
party bodily harm, and to break the king's peace; the sending such 
writing being an act done towards procuring the commission of the 
misdemeanor, meant to be accomplished. 6 East's Rep., 464. 

2d. Of Statutory Offence. 
By Act of 1812, 5th S. L., 671, as altered and repealed by Act of 
1834, 6 S. L., 515; if any person or persons, resident in, or being a 
citizen of this State, shall fight a duel, or shall give or accept a chal- prohibited, 
lenge to fight a duel, within this State, or shall cause any such 
challenge to be sent, given or accepted, within this State, or within 
the limits of the United States, his or their seconds, and all and every 
other person or persons directly or indirectly concerned in fighting any 
duel, or sending, giving, accepting, or carrying, or conveying any such 
challenge, their counsellors, aiders and abettors, upon being thereof 
convicted in any Court having jurisdiction, shall be imprisoned for a 
term not exceeding twelve months, and a fine not exceeding two 



166 LAW OF MAGISTRATES. 

thousand dollars. Provided, however, that in case any death shall 
happen in consequence of any duel, this act shall not be so construed 
as to save the offenders from the pains and penalties of the laws of the 
land, provided for the punishment of homicide. 
One concern- By Act of 1823, 6th S. L., 208; that from and after the passing of 
evidence this act, upon the trial of all indictments for duelling, which shall 
crimSaticg hereafter be prosecuted in this State, any person concerned therein, 
either as principal or second, or as counselling, aiding and abetting in 
such duel, shall and may be compelled to give evidence against the 
person or persons actually indicted, without criminating himself, or 
subjecting or making himself liable to any prosecution, penalty, for- 
feiture or punishment, on account of his agency in such duel; and in 
every case where two or more persons shall be charged in any indict- 
ment for fighting a duel, or being concerned therein, either of such 
persons may be used as a witness or witnesses in behalf of the State, 
by having his or their names stricken out of the indictment, or other- 
wise, at the direction of the attorney general or solicitor conducting 
such prosecution, of which an entry shall immediately be made on the 
minutes of the Court; and in case any such person or persons so used 
as witness or witnesses, inbehalf of the State, in any prosecution for 
fighting a duel, or for being concerned therein, shall afterwards be 
indicted for the same ofiTeoce, the fact of his or their being used as 
witness or witnesses on the former prosecution for the same offence, 
shall and may be pleaded in bar to such subsequent indictment, and 
on proof thereof, by competent evidence, such person or persons shall 
be thereof acquitted and discharged. 

Under which it has been held, that a challenge delivered in this 

Challenge to . 

fight in State to fight a duel in Georgia, is a -breach of the law of this State 

ancther ° ° 

State. against duels, and is indictable here. State vs. Taylor, 1 Tr. R., 107. 

A verbal challenge upon sudden controversy, and though given 
chaiienge. without the intervention of a second, is an offence against the act of 
1812. State vs. Strickland, 2N. <k Mc, 181. 

Precedent. 
1. Warrant. 

State of SorTH.CAHOLixA, 
District. 

By ' , magistrate, in and for the said State. 

To any lawfiil Constable. 
Whereas, it appeareth to me, upon the oath of , that (the 

names of the principals.) (State here the acts done by them,) and 



LAW OF MAGISTRATES. 167 

that (the names of the others concerned therein,) were engaged 
therein, (as seconds,) or (by causing a challenge,) or as (counsellors 
and abettors.) 

These are, therefore, to cOmmand you to apprehend the said named 
persons, to bring them before me, to be dealt with according to law. 
Given under my hand and seal, at , this day of , one 

thousand eight hundred and 

A. B., [l. s.] 

Magistrate. 

2d. Recognizance. 

Observe that if either party be killed in duel, the punishment of the 
other principal and seconds is death, without benefit of clergy, and in 
such case, a magistrate may never admit to bail. Observe also, that 
the greatest extent of the fine being two thousand dollars, the recog- 
nizance, according to act of 1839, must not be for less than that 
amount. 

The State of South-Carolina. 

Be it remembered, that on the day of in the year of our 
Lord one thousand eight hundred and personally appeared 
before me, magistrate, in and for the said State, who acknow- 

lodged themselves indebted to the State of South Carolina, that is to 
say, the said in the sum of two thousand dollars, and the said 

in the sum of two thousand dollars, like money, to be levied 
of their separate lands and tenements, goods and chattels, respectively, 
to and for the use of the State, if the above mentioned shall • 

fail in the performing the condition underwritten. 

The condition ot this recognizance is such, that if the said 
shall personally appear before the Court of General Sessions, to be 
holden at the usual place of judicatures in on the 

Monday in then and there to answer to a bill of indictment, 

to be preferred against him, (for fighting a duel) or (for giving or 
sending a challenge to fight a duel, within this State,) or (for accepting 
a challenge to fight a duel within this State,) or (for causing a chal- 
lenge to fight a duel, to be given or sent within this State,) or ffor 
causing a challenge to fight a duel, to be accepted within this State,) 
or (for being concerned in any of the above,) or (for carrying or con- 
veying a challenge to fight a duel,) or (for committing, aiding and 
abetting, in any of the above,) and to do and receive what shall be 
enjoined by the Court, and not to depart the Court without license; 
and in the meantime, that the said do keep the peace of the 



1G8 LAW OF MAGISTRATES. 

Htate, and be of good behaviour towards all the citizens thereof, and 
especially towards the said ; then this recognizance to 

be null and void, or else to remain in full force and virtue. 
Taken ai)d acknowledged the day and ) 
year above written, before me. ^ 

Signed, [i. s,] 

A. B., Magistrate. [l. s.] 

If it be brought to the notice of a magistrate that two persons are 
suspected of being about to fight a duel, and good reason be shewn for 
such suspicion, ho should forthwith cause such persons to bo arrested, 
and require them to give bonds for the peace. 

3. JPorm of such Recognizance. 
Penal Clause, as above. 
Condition. The Condition of this recognizance is such, that if the. above bound 
A. B. do keep the peace of the State, and be of good behaviour 
towards all the citizens thereof, and especially towards C. D., and 
particularly if he shall not fight a duel, or shall not send, or give, or 
accept a challenge to fight a duel, within this State, or shall not cause 
any such challenge to be given, sent, or accepted, within this State, 
or within the limits of the United States, for one year and a day, then 
the above recognizance shall be null and void, or else to remain in 
full force and virtue. 

Taken and acknowledged the day and } 
year above written, before me. ^ 

Signed, [l. s.] 

• A. B., Magistrate. [l. s.] 



DURESS. 



2d. Burn., J., p. 57. Duress is where a person is kept in prison, 
or restrained of his liberty, contrary to the order of law, or threatened 
to be killed, maimed, or beaten: and if such person, so in prison, or 
in tear of such threats, make any specialty or obligation by reason of 
such imprisonment or threats, such deed is void in law; and in any 
action brought upon such specialty, the party may plead that it was 
made by duress, aqd so avoid the action. — Cowel. 

Every legal contract must be the act of the understanding, which 
they are incapable of using, who are under restraint and terrors; and 



LAW OF MAGISTRATES. 169 

therefore the law requires the free assent of the parties, as essential 
to every contract, and that they are not under any force or violence. 
2 Bac. Abr., 155. 

It seems clearly agreed, that where a person is illegally restrained Bond while 
of his liberty, by being confined in a common jail or elsewhere, and"" ®'' ^°' • 
during such restraint, enters into a bond or other security to fhe person, 
who causes the restraint, that he may avoid the same fi)r duress of 
imprisonment. — Co. Litt., 253; Jenk., 1G6. 

Lord Coke says, that for menaces, a man may avoid his own act in 
four instances : for fear of loss of life, loss of member, of mayhem, or 
imprisonment. 1 Inst., 488. 



ELECTIONS. 

1st. Of the Oath, Powers, aivd Duties of Managers. 

2d. Of the Qualificatioxs of Voters. 

3d. Of offences agaixst the freedom of Electioxs. 

Is^ Of the Oath, Powers, and duties of Managers. 

By resolution of December 16, 1833, 1 S. L., 199, managers of 
elections are required to take an oath or affirmation, "that they will^*'^" 
faithfully and impartially carry into execution, the elections in which 
thpy may serve, agreeably to the Constitution of the State of South- 
Carolina." 

6th S. L., 94, sec. 1st. From and after the passing of this Act,„ ^ . 
the managers appointed to conduct elections, to Le made by the '^tered. 
people, shall be, and they are hereby, authorized and empowered to 
administer to each other, respectively, the oath or oaths prescribed to 
be taken before entering on the duties of their appointment. 

By Act of 1831, 6th S. L., p. 443, sec. 1, 2, 3, 4; The mana- powers of 
gers of elections for members of Congress, of the Legislature, sheriffs, ^^ctions!" 
clerks, and all other district officers, and also for the Intendant and 
Wardens of the city of Charleston, and also the officers of all incor- 
porated towns in this State, shall have authority to administer oaths Administer 
and examine witnesses in all matters concerning the duties of their 
appointment, and to maintain regularity and order at their respective 
polls; and if any person shall refuse to obey the lawful commands of 
the managers, while in the execution of their duties, or by disorderly 
conduct in their presence or hearing, shall disturb their proceedings, 
22 



LAW OF MAGISTRATES. 



Residence 
aiui name of 
voter to be 
set down. 



they may, by an order in writing, commit the person so offending to 
the common jail of the district, during the day of election on which 
such disturbance is committed; and such order shall be executed by 
the sheriff, or any constable to whom the same may be delivered ; or 
if none be present, by any other person deputed by the managers in 
writing: sfnd the sheriff, constable, or other person executing such 
order, shall be entitled to the same fees as for other arrests, to be 
defrayed by the party so offending, before his discharge, unless he 
shall make oath of his inability to pay the same. 

It shall be the duty of the managers, in holding an election in 
the parishes of St. Philip's and St. Michael's, to set down in writing, 
the particular place of residence, as well as the name, of every voter, 
and also to designate that the oath was taken, in case such voter was 
sworn to his qualification. 

If any person offering to vote, shall be challenged as unquali- 
fied, by a manager, or by any other person entitled to vote, the 
manager shall declare to the person so challenged, the qualifications 
of a voter; and if he shall state himself to be duly qualified, and the 
challenge shall not be withdrawn, the managers, except for the elec- 
tion of Intendant and Wardens of the city of Charleston, and also of 
the officers of all incorporated towns or villages within this State, 
shall then tender to him the following oath, if he be a person claiming 
to be qualified by residence : You do swear, or affirm, that you are 
a citizen of this State, of the age of twenty-one years, and have resided 
therein two years previous to this election ; that you are now a resi- 
dent of this district or parish, and have been a resident therein for the 
last six months; that you are not a pauper, soldier or non-commis- 
sioned officer of the army of the United States, and that you have not 
voted at this election." If the person offering to vote, does not claim 
to be qualified by residence, the managers shall tender to him the 
following oath: "You do swear that you are a citizen of this State, 
of the age of twenty-one years, and have resided therein two years 
previous to this election; that you have a freehold of fifty acres of 
land, or a town lot, in this district or parish, and that you have been 
legally seized and possessed of the same lot for the last six months; 
that you are not a pauper, non-commissioned officer or soldier of the 
army of the United Siates, and that you have not voted at this elec- 
tion. 

And if any person shall refuse to take the oath so tendered, or 
if the managers shall otherwise be satisfied that he is not qualified, his 
vote shall be rejected. 



LAW OF MAGISTRATES. 171 

"The managers to whom writs of election are addressed, in case o^^eciion°^ 
election for members of Assembly, are required to give public notice 
in writing of such election, two Sundays before the appointed time of 
election, at the door of the Church, or some other public place, as 
shall be appointed in said writ; and said election shall be held upon 
the same days at all places, where elections are appointed. Act 1721, 
3 S. L., 135; also p. 436, sees. 4th and 5th. 

And for preventing frauds in all elections as much as possible, if Manner of 
is hereby enacted, by the authority aforesaid, that the names of the ^°""S- 
electors for members of the Commons House of Assembly, shall be 
fairly entered in a book or roll, for that purpose provided by the 
churchwardens, or other persons appointed for managing elections, 
to prevent any person's voting twice at the same election; and the 
manner of their voting shall be as hereinafter directed, that is to say, 
each person qualified to vote, as is above directed, shall put into a 
box, glass, or sheet of paper, prepared for the purpose by the said 
churchwardens, ot other persons, as is above directed, a piece of 
paper rolled up, wherein is written the names of the Representatives 
he votes for, and to which paper the elector shall not be obliged to 
subscribe his name; and if, upon the scrutiny, two or more papers, 
with persons written thereon for members of Assembly, be found 
rolled up together, or more persons names be found written in any 
paper than ought to be voted for, all and every such paper or papers 
shall be invalid and of no effect; and that those persons, who, after 
all the papers and votes are delivered in, and entered as aforesaid 
shall be found (upon scrutiny made) to have the majority of votes, 
are, and shall be deemed and declared to be members of the succeed- 
ing Commons House of Assembly, so as they be qualified as is here- 
inafter directed. 

And be it further enacted, by the authority aforesaid, that the ^ow the 
said election shall not continue longer than two days, and that the be managed, 
said elections shall begin at nine in the morning, and end at four in 
the evening; and that at adjourning of the poll, at convenient hours, 
in the time of the aforesaid election, the churchwardens, or other 
persons as aforesaid, irr.powered to manage the said elections, shall 
seal up the said box, glass or paper, wherein are put all the votes, 
then delivered in, and rolled up by the electors as aforesaid, with 
their own seals, and the seals of any two or more of the electors that 
are then present; and upon opening the poll, shall unseal the said 
box, glass or paper, in the presence of the said electors, in order to 
proceed in the said election. 



172 LAW OF MAGISTRATES. 

xoticeof Bv Act of 1S39. sec. 1: Wherever a vacancy is about to 

election. - " • _ 

how given, occuT in the office of Clerk, Ordinary, or Sheriff, in any district in 

in case of . • , ' . 

Clerk, etc. this State, by expiration of the term of the incumbent, it shall be the 
duly of the acting Clerk of the Court of Common Pleas, at least two 
months before the term when such vacancy shall happen, to advertise 
ah election to fill such vacancy at the Court House door, at five other 
public places in tl e district at least, and in a newspaper, if any such 
be printed in the district, giving thirty days' notice cf the time of such 
election, and specifying any Monday succeeding the expiration of 
thirty, and before the expiration of sixty days, as the day of election; 
and he shall also issue a notice, to be served by the acting Sheriflf) 
to the several sets of managers of elections in the district, to attend 
at their respective polls on the day appointed, who shall so attend, and 
open them between ihe same hours ; and in other respects, the elec- 
tion shall be conducted in like manner, as is prescribed for the elec- 
tion of members of either branch of the Legislature. For every in- 
stance in which the Clerk shall render the services herein required 
of him, he shall be entitled, upon making satisfactory proof thereof to 
the treasurer of his division, to receive from the public treasury ten 
dollars, 

Vacarcies, When anv vacancy shall occur in either of the offices aforesaid, 
how uUcd. ' ' 

by the death, resignation, removal from the district or State, removal 

torn office of the incumbent, or by the death, omission or refusal to 
qualify, wnihin the time prescribed, of any officer elect, or by the 
lunacy of the incumbent, ascertained by inquisition found, it shall be 
the duty of the acting Clerk aforesaid to advertise for an election, and 
to issue notice tn the managers aforesaid, who shall conduct the 
election as prescribed in the first section of this Act. If the Clerk 
shall fail to advertise and give the notice herein required, the mana- 
gers of elections shall nevertheless proceed to advertise and hold an 
election as hereinbefore directed : and the Clerk, for every wilful 
neglect herein, shall be liable to indictnr.ent and punishment, as for a 
high misdemeanor. 

Whenever two candidates, for either of the offices aforesaid, 
P'rceedinss- may have the same number of votes, or when an election herein 
e;ecla.^° directed, shall be declared void by the managers, they shall forthwith 
advertise and conduct another election, in the same manner as is pre- 
scribed in the first section of this Act. 
Manaseisto '^^^ managers shall meet at the Court House of their district^ 
^*s declare °^ the Wednesday after the votes are received; and on the same day, 
eiecaon, ac ^.Qy^j qjj jfjg same, declare the election, if no notice of intention to 



LAW OF MAGISTRATES. 173 

contest it be given, and shall certify to the Governor the name of the 
person who may be duly elected. 

If any person desire to contest any election herein provided for, he 
shall, on the day the votes are counted and the election declared, fur- contesting, 
nish to the managers the grounds, in writing, on which he intends to 
contest the same; and they are hereby authorized and required to 
bear the matter, and determine, as soon as may be, the validity of the 
election so in question, and their decision shall be final. Provided, 
That the presence of at least two-thirds of the managers shall bo 
necessary to try the question, and the vote of the majority present, 
shall be required to determine it; and no manager who has been a 
candidate, shall be allowed to set upon the hearing and determination 
thereof. 

2d. Of the qualifications of Voters. 

By resolutions of 1831, 1st S. L., p. 198; Resolved, That every 
free white man, of the age of twenty-one years, (paupers and non-com- two years a 
missioned officers, and privates of the army of the United States s,ate, and 
excepted,) being a citizen of this State, and having resided therein freriaold. 
two years previous to the day of election, and who has a freehold of 
fifty acres of land, or a town lot of which he has been legally seized 
and possessed at least six months before such election, or not having 
any such freehold or town lot, hath been a resident in the election 
district, in which he offers to give his vote, before the election, six frvehm."^ 
months, shall have a right to vote for a member or members to serve 
in either branch of the Legislature, for the election district in which 
he holds such property or residence. 

Resolved, That the t»vo years residence required by the Consti- 
tution in a voter, are the two years immediately previous to the 
election, and tho six months residence in the election district, are the j^lJfg^^g^ 
six months immediately previous to the election; but if any person has 
his home in the State, he does not lose the right of residence by tem- 
porary absence, with the intention of returning; and if he has his 
home in the election district, his right to vote is not impaired by a 
temporary absence with the intention of returning. But if one has 
his home and family in another State, the presence of such person, 
although continued for two years in the State, gives no right to vote. 

2d. Offences against the freedom of Elections. 
By Act of 1831, 6th S. L., p. 443, section 5th; In all indict- 
ments for perjury, or subornation of perjury, an oath taken before ^®gjp^^|i"y 
the managers of any election ordered by law, or by joint resolution 



174 



LAW OF MAGISTRATES. 



Managers 
may employ 
two consta- 
bles for each 
of the polls. 



Votes not to 
be purcliased. 



Penalty 
therefor. 



Informer 
exculpated. 



OflTences, 
where and 
how 
punished. 



of both branches of the Legislature, in the due execution of their 
duties, shall be equivalent to an oath taken in a judicial proceeding; 
and any person convicted of perjury, or subornation of perjury, assigned 
in taking, or in procuring any person to take a false oath before the 
managers of elections, shall suffer the pains and penalties prescribed 
bylaw for such offences. 

The managers of election for St. Philip's and St. Michael's, 
shall be authorized to employ two constables for each of the several 
polls, who shall each receive for their services the sum of one dollar 
per day. 

If any person shall, directly or indirectly offer, give, or engage 
to pay, any sum of money or other valuable consideration to any other, 
to induce such other person to procure for him, or for any other person, 
by his vote, interest, influence, or any other means whatsoever, any 
office of honor, profit or trust, within this Slate, or shall offer, give, 
promise, or bestow, any reward, by meat, drink, money or otherwise, 
for the aforesaid purpose, and be thereof convicted, he shall forfeit 
the sum of not less than one hundred, nor more than five hundred 
dollars, and suffer imprisonment for a term not exceeding six 
months. 

If any person shall accept or receive, directly or indirectly, of 
another, a.iy money or reward of meat, drink, or other valuable 
consideration, for procuring or assisting to procure, by his vote, inter- 
est or influence, any office of honor, profit or trust within this State, 
for any other person whonisoever, and be thereof convicted, he shall 
forfeit the sum of not more than one hundred dollars, and suffer impri- 
sonment at the discretion of the Court, having cognizance of the same; 
and if such offender be in any office, he shall, on such conviction, be 
disabled from holding the same. 

If either of the parties, offending as aforesaid, shall give information, 
upon oath, against the other offending party, and shall duly prosecute 
such offender, such offender shall be free from the penalties aforesaid. 

All offences under this act shall be heard, tried and deter- 
mined before the Court of Sessions and general jail delivery, in the 
district where such offence is committed, and the pecuniary penalties 
accruing thereby shall go, one half to theinformer, and the other half 
to the commissioners of public buildings for the district where the 
offence is committed; and such informer shall be a competent witness, 
notwithstanding his interest in the event of the prosecution. 

If any person shall, at any election whatever, maltreat, assault. 



LAW OF MAGISTRATES. 175 

threaten, beat or abuse any voter, with a view to intimidate or control voters not to 

r rr I rr J ^^ iulimida- 

him in the free exercise of his right of sutirage, such onender, on con- ted. 
viction, shall suffer fine and imprisonment, at the discretion of the 
Court. 

If any person shall forcibly interrupt any election pending under 
any law of this State, Or shall invalidate, or prevent, or attempt and offences 
to invalidate or prevent any such election, by breaking up, or remo- 
ving, or seizing upon, the ballot box or boxes, or shall by any means 
prevent or deter, or endeavor to prevent or deter, any voter or voters 
from putting his or their ballot or ballots into the boxes, or shall 
change or destroy the ballots which have been duly put therein, every 
person, offending in any of the cases aforesaid, shall forfeit the sum of 
not less than fifty dollars, nor more than two hundred dollars, and 
shall also suffer imprisonment for a term not exceeding three months. 



ESCAPE. 

An escape is, where one that is arrested, gaineth his liberty before 
he is delivered by course of law. Terms de la Ley. 

Escapes are of three kinds. 1. By a person who hath the offender rpj,fgg ^j^^g, 
in his custody; this is properly called an escape. 2. Caused by a 
stranger; this is commonly called a rescue. 3. By the party himself, 
either without force, which is simply an escape, or with force, which 
is prison-breakinjT, Rescous and prison-breaking are treated of under 
their respective titles; and this title treats only of escapes properly 
so called; concerning which we will observe the following order: 

1st. Of Escape by the party himself. 

2d. Escape suffered by a private person. 

3d. Escape suffered by an officer. 

4th. What is a voluntary and what a negligent escape. 

5th. Concerning the retaking of a person escaped. 

6th. Punishment of an escape. 

7lh. Precedent. 

1 . Of escape hy the party himself. 

As all persons are bound to submit themselves to the judgement of 
the law, and to be ready to be justified by it; whoever in any case 
refuses to undergo that imprisonment which the law thinks fit to put 



LAW OF MAGISTRATES. 



upon him, and frees himself from it by artifice, before such time as he 
is delivered by due course of law, is guilty of an high contempt, pun- 
ishable with fine and imprisonment. 2 Haw., 122. 

But escape committed by the party himself, belongs more properly 
to the title, prison-breaking. 

2. Escape suffered by a private person. 

It seems to be a good general rule, that wherever any person hath 
another lawfully in his custody, whether upon an arrest made by him- 
self or another, he is guilty of an escape, if he suffer him to go at 
large before he hath discharged himself of him, by delivering him 
over to some other, who by law ought to have the custody of him. 2 
Haw., 138. 

And the law is generally the same, in relation to escapes suffered 
by private persons, as by officers. 2 Haw., 138. 

3. Escape suffered hy an officer. 

In order to make it an escape, there must be an actual arrest; and 
therefore, if an officer having a warrant to arrest a man, see him shut 
up in a house, and challenge him as his prisoner, but never actually 
have him in his custody, and the party get free, the officer cannot be 
charged with an escape. 2 Haw., 229. 

And as there must be an actual arrest, such arrest must be also 
justifiable; for if it be either for a supposed crime, where no such 
crime was committed, and the party neither indicted nor appealed, or 
for such a slight suspicion of an actual crime, and by such an irregular 
mittimus as will Jieither justify the arrest nor imprisonment, the officer 
is not guilty of an escape, by suffering the prisoner to go at large. 2 
Haw., 129. 

And as the imprisonment must be justifiable, so it must be also for 
a criminal ofl^ence. 2 Haw., 129. 

Also if a prisoner be acquitted, and detained only for his fees, it 
Avill not be criminal to sufl^er him to escape, though the judgement 
were, that he be discharged, paying his fees, so that till they be paid, 
the first imprisonment continued lawful as before; for inasmuch as he 
is detained, not as a criminal, but only as a debtor, his escape cannot 
be more criminal than that of any other debtor: yet, if a person con- 
victed of a crime be condemned to imprisonment for a certain time, 
and also till he pay his fees, and he escape after such time is elapsed, 
without paying them, perhaps such escape may be criminal, for that 
it was part of the punishment that the imprisonment be continued till 
the fees should be paid : but it seems, that this is to be intended where 



LAW OF MAGISTRATES. 177 

the fees are due to others as well as to the jailor, for otherwise the 
jailor will be the only sufferer by the escape, and it will be hard to 
punish him for suffering an injury to himself only, in the non-payment 
of a debt in his power to release. 2 Haw., 129, 130. 

Also it is an escape in some cases, to suffer a prisoner to have Bailing. 
greater liberty than by the law he ought to have; as to admit a person 
to bail, who, by law, ought not to be bailed, but to be kept in close 
custody. 2 Haw., 130. 

So if a jailor, or other officer, shall licence his prisoner to go abroad Going 
for a time, and to come again ; this is an escape, because the prisoner '''"^°^*'' 
is found out of the bounds of his prison, though the prisoner return 
again, according as he shall be prescribed. Dalt., c. 159. 

If the jailor so closely pursues the prisoner who flies from him, that 
he retakes him, without losing sight of him, the'law looks on the P'isoner pgjjj|.jjj^ 
so far in his power all the time, as not to adjudge such a flight to 
amount at all to an escape; but if the jailor once lose sight of the 
prisoner, and afterwards retake him, he seems in strictness to be 
guilty of an escape. And if he kill him in the pursuit, he is in like 
manner guilty of an escape, though he never lost sight of him, and 
could not otherwise take him, not only because the State loses the 
benefit it might have had by the forfeiture on his attainder, but also 
because the public justice is not so well satisfied by the killing him 
in such an extra-judicial manner. 2 Haw., 130. 

4. What is a voluntary, and what a negligent escape. 

Wherever an officer, who hath the custody of a prisoner, charged Y^Jl^^^J^Jy_ 
with and guilty of a capital offence, doth knowingly give him his 
liberty, with an intent to save him from his trial or execution, this is 
a voluntary escape. 2 Haw., 130. 

A negligent escape is, when the party arrested or imprisoned ^t)th j. jj^^^^j 
escape against the will of him that arrested or imprisoned him, and is 
not freshly pursued and taken again, before he hath lost the sight of 
him. Dalt., c. 159. 

If the constable or other officer shall voluntary suffer a thief, being 
in his custody, to go into the water to drown himself, this escape is K|y'!^g^g^j. 
felony in the constable, and the drowning is felony in the thief; other- 
wise if the thief shall suddenly, without the assent of the constable, 
kill, hang, or drown himself, this is but a negligent escape in the con- 
stable. Dalt., c. 159. 

5. Concerning the retaking of a person escaped. 

If an officer hath arrested a man by virtue of a warrant, and then 
23 



178 LAW OF MAGISTRATES. 

Not if the taketh his promise ihat he will come again, and so letteth him go, 

prisoner be ii. • ^ /• ri_'r 

let go. the officer cannot, after arrest, taite him again by force or his lormer 

warrant, for that this was by the consent of the officer : but if he 
return, and put himself again under the custody of the officer, it seems 
that it may be probably argued, that the officer may lawfully detain 
him, and bi-ing him before the justice in pursuance of the warrant. 
Dalt., c. 169; 1 Haw., 81. 

But if the party arrested had escaped of his own wrong, without 
the consent of the officer, now upon fresh suit, the officer may take 
him again and again, so often as he escapeth, although he were out 
of view, or that he shall fly into another town, or county, and bring 
him before the justice upon whose warrant he was first arrested. 
Dalt., c. 169. 

And it is said generally in some books, that an officer, who hath 
esca^l''"^''' negligently sufl^ered a prisoner to escape, may retake him wherever 
he finds him, without mentioning any fresh pursuit ; and indeed, since 
the liberty gained by the prisoner is wholly owing to his own wrong* 
there seems to be no reason he should take any manner of advantage 
from it. 2 Haw., 131, 132. 

And wherever a person is lawfully arrested for any cause, and 
afterwards escapes, and shelters him in an house, the doors may be 
broke open to take him, on refusal of admittance. 2 Haw., 87. 

It is perhaps the better opinion, that wherever a prisoner, by the 
negligence of his keeper, gets so far out of his power that the keeper 
loses sight of him, tbe»keeper is punish tble for the escape, notwith- 
standing he retook him immediately after: and it is clear, that he 
cannot excuse himself from an escape, by killing a prisoner in the 
pursuit, though he could not possibly retake him: birt must, in such 
case, be content to submit to such punishment as his negligence shall 
appear to deserve. 2 Haw., 132. 

6. Punishment of an escape. 

If a felon escapes before arrest, it is not punishable in him as felony. 
Hale's PL, HI. 
Byprtvate ^^^ private person arrest a felon, and he escape by force from him, 
it seems it escuseth the party, because he cannot raise power to assist 
him ; but if a constable or other officer hath the custody of a prison- 
er, bringing him to the jail, it seems that a simple escape by the 
rescue of the prisoner himself, doth not wholly e.xcuse him, because 
he may take sufficient strength to his assistance. 1 H. H., 601. 
Wherever a person is found guilty, upon an indictment or present- 



person. 



LAW OF MAGISTRATES. 179 

ment, of a negligent escape of a criminal, actually in his custody, he Fine, 
is punishable by fine and imprisonment, according to the quality of 
the ofTence. 2 Haw., 136, 139; 1 H. H., 600, 604. 

And it seems' to be the better opinion, that the sheriff is as much siipnff 

Til r- 1- liable for his 

liable to answer for a negligent escape, suffered by his bailiff, as ifbaiuff. 
he had actually suffered it himself, and that the Court may charge 
either the sheriff or bailiff for such an escupe ; and if a deputy jailor 
be not sufficient to answer a negligent escape, his principal must 
answer for him. 2 Haw., 135. 

If a prisoner for felony break the jail, this seems to be a negligent j^^^„ 
escape of the jailor, because there wanted either that due strength 
in the jail that should have secured him, or that due vigilance in the 
jailor, or his officers, to have prevented it; and therefore it is lawful 
for the jailor to hamper them with irons to prevent their escape; for 
if jailors might not be punished for this, as a negligent escape, they 
would be careless either to secure their prisoners, or to retake them 
that escape. 1 H. H., 601. 

It seems to be generally agreed, that a voluntary escape suffered y„|untary 
by an officer, amounts to the same kind of crime, and is punishable '^^"P^* 
in the same degree, as the offence of which the party was guilty, and 
for which he was in custody, whether it be treason, felony, or trespass. 
2 Haw., 134. 

But yet a voluntary escape is no felony, if the act done were not 
felony at the time of the escape made, as in case of a mortal wound 
given, and the party not dying till after the escape. Dalt., c. 159. 

Also, a voluntary escape suffered by one who wrongfully takes upon py wrongful 
him the keeping of a jail, seems to be punishable in the same manner, J*"'*"' 
as if he was never so rightfully entitled to such custody : for that the 
crime is in both cases of the same ill consequence to the public; and 
there seems to be no reason that a wrongful officer should have 
greater favour than a rightful, and that for no other reason, but because 
he is a wrongful one. 2 Haw., 134. 

But it seemeth to be clear, that no one is punishable as for felony^ p^.^^^^i^^^ 
for the voluntary escape of a felon, but the person only who is actually punished 
guilty of it ; and therefore that the principal jailor is only finable for 
a voluntary escape, suffered by his deputy ; for that no one shall suffer 
capitally for the crime of another. 2 Haw., 135. 

And therefore, although in all civil causes, the sheriff is to be 
responsible, or the jailor, at election; yet if the jailor do voluntarily 
suffer a felon in his custody to escape, this, inasmuch as it reacheth to 



LAW OF MAGISTRATES. 

life, is felony only in the jailor that was immediately trusted with the 
custody, and not in the sheriff. 1 H. H., 597. 

For the escape must be volimtarily permitted in him that permitted 
it, which could not be in the high sheriff, though it were such in the 
jailor, for he was not privy to it, and therefore could not do it felo- 
niously; but it was a negligent escape in him, in trusting such a 
person with the custody of his prisoners, that would be false to his 
trust ; and therefore the sheriff shall pay, but not corporally suffer for 
the miscarriage of his jailor. 1 U. H., 597,598. 

But although the felony for which a man is committed, be not within 
clergy, yet the person who voluntarily suffers him to escape, shall 
have the benefit of clergy. 1 H. H., 599. 

7. Precedent, 

Form of an Escape Warrant. 

South-Carolina, > 
District. ^ 

By I. P., Esq., Magistrate for the district and State aforesaid. 
To A. B., Constable. 

Whereas, A. O., one of the lawful constables of the said parish 
of hath this day made oath before me, that on or about the 

day of he, the said A. O., then being a constable, as 

aforesaid, by virtue and in pursuance of a warrant for felony, (or as 
the case shall be,) against E. F., now or late of labourer, duly 

issued by I. P., one of the justices of parish, did take and arrest 

the body of the said E. F.; and whereas the said E. F. so being taken, 
and arrested by the said A. O., with force and arms, did make his 
escape from the said A. O., against the will of the said A. O., in 
contempt of the said warrant, and contrary to the laws in such case 
made and provided. 

These are, therefore, strictly to command and enjoin you, and 
every of you, to make diligent sesrch after the said E. F., and 
him to re-take and convey to the common jail of And the 

keeper of the said jail is hereby required to receive him, the said E. 
F., and him there safely keep, until he be from thence delivered by 
due course of law ; and for your so doing this shall be your sufficient 
warrant. Given, &;c. 



LAW OF MAGISTRATES. 181 



E S T R A Y, ' 

Is where any horses, sheep, cows, or other tame beast is found wan- ^yjj^, jg 
dering about, and their owner is unknown. 

1st. Rights and Duties of Paety where Esteay is found. 
2d. Of Proceedings after return to a Magistrate. 

1st. Rights and Duties of Parties, ichere Estray is found. 

By Act of 1803, 5 S. L., 6; If any estray be found in or about 

the plantation of any settled resident or freeholder, he may take it into 

possession, and advertise it in three days thereafter in three or more 

^ ^ '' . Must adver- 

public places in the county or parish where such person resides, and tise. 

within ten days after advertisinpf, take such estray to the nearest majris- 

•' , ° . And take to 

trate, (excepting hogs, sheep, neat cattle, or goats, which shall be magistrate, 
appraised at the place taken up.) 

The person taking up a horse, mare, gelding, ass or mule, may put 
the same to moderate labor, as a compensation for keeping the same, 

. . May put to 

and shall be liable to the owner in damages for the abuse thereof, if labour. 
he shall claim it within the time limited. 

If a party taking an estray shall not put the Same to labor, he will 

. • 1 1 • z' , ^ 1 • 1 • 11 Or demand 

be entitled to compensation for the nnding, keeping, and other expen- compen. 
ses thereof. Dolt., Sher., 79. 

Any person who shall take up an estray, and shall neglect to adver- 
tise the same, and make return thereof to a magistrate, shall be liable Not adverti- 
to a fine of twenty dollars, to be recovered upon information in any ^'"^' 
Court of Record, to be given to the informer, and also to an action for 
damages by the owner. 

2(Z. Of Proceedings after return to Magistrates. 
Act of 1839, p. 20, sec. 22; Every magistrate before whom an 
estray shall be returned, shall cause the same to be appraised on oath, 
by three proper persons in the neighborhood, who shall certify their 
appraisement, together with an accurate description of the color, size, 
age, brands and marks of said estray, under their hand; whereupon an'']''^'^^'^ 
the said magistrate shall enter the same at large on his toll book; and *''^^"'''^''" 
shall, within ten days thereafter, send a duplicate of the said certificate 
to the Clerk of the Court of the district in which such estray shall be 
taken up; and at the same time shall cause the same to be advertised. Notice to 

CierK of 

together with notice where the said estray is to be found; if an estray court. 
other than a horse or mule, at three or more public places in the dis- 



1 82 LAW OF MAGISTRATES. 

trict, one of which shall be on the Court-house door, for two months; 

and if a horse or mule, by advertising at the same places, and in the 

nearest Gazette, once a month for four months; and if no owner shall 

appear and prove his property within the time directed for advertising, 
Sold at such magistrate shall cause the same to be sold at public outcry, after 
outcry. publicly advertising the same for ten days, on a credit of six months, 

except the costs, to be paid in cash, requiring of the purchaser, note 

and good surety for the purchase money, which shall be at once 
Pr eds assigned by the said magistrate to the Commissioners of Roads, for 

the Battalion, Regiment, or Parish, within which the estray was taken 

up, which said magistrate shall, at the same time, return an account 

of sales and costs to the clerk of said district. 

By Act of 1803, if any person puts in a just and lawful claim to 
Owner may such estray after the sale, and before the note becomes due, the com- 

missioners shall give up the note to him on his paying the customary 

fees. 

The fees of the magistrate are, for proceedings on estray of horse or 

mule, fifty cents; proceedings on all other estrays, twelve-and-a-half 
Fees. cents; and ot the constable, five per cent, on the proceeds of the sale. 

Act of 1840, p. 105; and by the Act of 1803, the printer is entitled 

to one dollar for advertising a horse or mule. 



ESTREAT. 

In all recognizances acknowledged since the 26th day of March, 
1784, or which shall hereafter be acknowledged by any person for 
keeping the peace, or good behaviour, or for appearing as a party, 
surety or witness at any Court of criminal jurisdiction, the sum of 
money in which such person shall be bound, shall be made pa}' able to 
the State, in aid of the revenue thereof'; and every such recognizance 
shall be good in law, provided it be signed by every party thereto, 
and also acknowledged in the presence of a judge, or justice of the 
peace, who shall certify such acknowledgement: otherwise such 
recognizance shall be void. And whenever any such recognizance 
shall become forfeited, the attorney-general, or other person acting 
Sci Fa. to for him, shall, without delay, issue a scire facias io summon every 
party bound in such forfeited recognizance, to appear at the next 
ensuing Court of Sessions, to show cause why judgement should not 
be confirmed against him: and if any person so bound, fail to appear, 



be issued. 



LAW OF MAGISTRATES. 183 

or appearing, shall not give such reason for not peforming the condi, 
tion of such recognizance as the Court shall deem sufficient, then the 
judgement on such recognizance shall be confirmed. And in every 
case where any such recognizance shall be adjudged forfeited, or 
where any fine shall be imposed by, or recovered for the use of the 
State, in any district or county Court, or before a justice, if the party 
incurring such fine or forfeiture shall fail to pay down the same, with 
the costs of prosecution, then a writ in nature o( a. fieri facias, shall fi Fa. on 
issue, by virtue of which the sheriff shall sell (in the same manner as pay/ 
property is sold under execution in civil cases) so much of such ofl"en- 
der's estate, real or personal, as may be necessary to satisfy the fine 
or forfeiture, the costs of prosecution, and the charges of taking, keep-^ 
ing and selling such property; returning the overplus, if any, to the 
offender, together with a bill of the fine or forfeiture, with costs and 
charges, if he require it. But the sheriff shall sell every other part 
of the personal estate before he shall s°ll any negro; and if the sheriff 
return on oath that such offender refuselh to pay, or hath no property, 
or not sufficient whereon to fevy, then a writ of capias ad salisfaci- J^juftf^f" 
endtim shall issue, whereby he shall be committed to the common jail,^'-^^* 
until the forfeiture, costs and charges shall be satisfied; entitled how- 
ever to the privilege of insolvent debtors. A. A., No. 1467. 

The sherifl of each district, and every justice of peace, or clerk 
of any Court, after receiving any fine or forfeiture, shall, as soon as 
may be, pay the same into the public treasury, excepting such fines 
and forfeitures as shall be appropriated for the use of such county, in 
such manner as shall be directed by a majority of the judges thereof: Fine to be 
and if any sheriff, or any clerk of a Court shall keep in his hands any Treasury in 

two mouths, 

monies which shall be recovered by, or paid to him for any fine oronpenaity. 
forfeiture, for any space of time more than two calendar months after 
such monies shall have been delivered to him, he shall forfeit treble 
the amount of the sum so detained. And every sheriflT, justice, and 
clerk of a Court, shall cause to be kept a just and regular entry of all 
fines and forfeitures that shall come into his bands respectively: and 
if any fraud or wilful failure shall be committed by any sheriff, justice, 
or clerk of a Court, or constable, in levying, paying, or accounting 
for any fine ur forfeiture, and he be thereof convicted, the offender 
shall forfeit treble the sum, whereof there shall be committed fraud 
or failure, and be thereafter incapable to hold his office. 



184 



LAW OF MAGISTRATES. 



EVIDENCE. 

[See Accomplice, Causes Small and Mean, Examination, &c.] 

1st. Of the Parties. 

2d. Books of Account. 

3cl. Competency and Ckedibility of Witnesses. 

4th. Of various kinds of Testimony, and its Admissibility 



In civil 
ca-'es before 
magistrate. 



In cases of 
usury. 



Proviso. 



In cases of 
bailment. 



1st. Of the Parties. 

By Act of 1839, page 17th, sec. 15th; In case a witness is not, or 
cannot, he produced to prove such demand, or any matter or thing 
pertaining thereto, the said magistrate may examine on oath, either 
party, such oath being first proposed to the defendant, and on his 
refusal to take the same, or to answer such questions as shall be 
demanded of him by said magistrate, then to be proposed to the plain- 
tiff: Provided, that nothing herein shall prevent any plaintiff 
from proving his demand, when by law he is a competent witness: and 
provided also, that if any discount be set up in examining the same, 
the rule shall be reversed as to the right of being first sworn. 

In all cases Vv'hatsoever, where any suit or action shall be 
brought, sued or depending, in any Court of Record in this State, 
touching or concerning any usurious bond, specialty, contract, pro- 
mise, or agreement, or taking of usury or higher rates of interest than 
is allowed by this act, the borrower or party to such usurious bond, 
specialty, contract, promise, or agreement, or from whom such higher 
rates of interest is or shall be demanded, had or taken, shall be, and 
is hereby declared to be, a good and sufficient witness in law to give 
evidence of such offence against this act; Provided always, that if 
the person or persons against whom such evidence is offered to be 
given, will deny upon oath, in open Court to be administered, the truth 
of what such evidence offers to swear against him, then such witness 
shall not be admitted to be sworn; and if any witness or party shall 
forswear himself in any such matter, he and they so doing, and being 
thereof lawfully convicted, shall suffer all the pains and penalties, 
which, by the laws now in force in this State, ought to be inflicted on 
persons convicted of wilful and corrupt perjury. 4th S. L., 364, § 2. 

Where a shipmaster received on board his vessel a trunk of goods, 
to be carried to another port, but on the passage, he broke open the 



LAW OF MAGISTRATES. 185 

trunk, and rifled it of its contents; in an action by the owner of the 
goods, against the ship-master, the plaintilT, proving aliunde, the 
delivery of the trunk, and its violation, was hold competent as a wit- 
ness to testify to the particular contents of the trunk. And on the 
same principle, the bailor, though a plaintiff, has been admitted a 
competent witness to prove the contents of a' trunk, lost by the negli- 
gence of the bailee. Such evidence is admitted, not solely on the 
ground of the just odium entertained, both in equity and at law, against 
spoliation, but also because, from the necessity of the case and the 
nature of the subject, no proof can otherwise be expected; it not 
being usual even for the most prudent persons, in such cases, to 
exhibit the contents of their trunks to strangers, or to provide other 
evidence of their value. Greenleaf, p. 417, sec. 348. 

2d. Books of Account. 
The rule as to what books and charges are admissible in evidence, 
has been wholly settled by the decisions of the Court, the only statutes 
touching the same being 7 James 1st, c. 12, and the Act of 1721, 7th 
S. L., 168; the first of which has been held not of force; Foster vs. 
Sinkler, 1st Bay, 40; and the latter being merely a partial recognition 
ot an existing custom, founded on necessity. 

Whose books are admissible. 

The original book of entries of a merchant or shop-keeper, is good jjerdiants, 
evidence to go to a jury, upon the plaintiff's swearing to the same. 
Foster vs. Sinkler, 1st Bay, 40. 

The books of tradesmen and mechanics, are good evidence to prove Tradeg^nen 
work and labour. Slade vs. Teasdale, 2d Bay, 40; and Lamb vs. ^'^^.j^^^jj^g 
Hart, ibid, 362. 

A printer's books are admissible to prove bis accounts, for adver- . 
tisements and the delivery of his newspaper, when he has no better 
evidence in his power; Thomas vs. Dyott, 1 N. & M'C, 186 : but a 
printer's books are only evidence to prove the authority for adver- 
tizing, and the file of newspapers must be produced to shew the per- 
formance of the printing alleged to have been done. Richards vs. 
Howard, 2d N. & M'C, 474. 

The books of the owner of a ferry are admissible to prove an ferrymen. 
account for ferriage; Frazier vs. Drayton, 2d N. & M'C, 471 : but 
in the case of Boyd vs. Ladson, 4th M'Cord, 76, the Court expresses 
dissatisfaction with this case. 

A miller's books, who sworo to the original entries which he made. Millers, 
24 



186 



LAW OF MAGISTRATES. 



PhyBicians. 



Pedlars. 



Jailor. 



Planters. 



Schoolmas- 
ter. 



Billiard table 
keeper. 



On front leaf. 



Memoran- 
dum books. 



Entry on 
Elate. 



Sale by one, 
and entry by 
aiioiiier. 



are admissible to prove the quantity of lumber furnished from his saw 
mill to the defendant. Gordan vs. Arnold, 1 M'C, 517. 

The cases of Schmidt vs. Quin, 1st M'C, 418; and Lance vs. 
McKenzie, 2d Bailey, 449; allow the admissibility of the books of a 
physician, when the charges are regular and specific. 

Whose books are not admissible. 

The memorandum books of a pedlar, in which he made his original 
entries for the most part in pencil, and carried about with him in his 
pocket, are not admissible in evidence. Thayer vs. Deen, 2 Hill, 677. 

The books of accounts of a scrivener are not admissible. Watson 
vs, Bigelow, 2d Brevard, 127. 

A jailor's books are not evidence to prove the length of a prisoner's 
confinement under a ca. sa., in an action by the sheriff against the 
plaintiff in the execution for his maintenance while in jail. They 
would not be evidence for the jailor, if the action were brought in his 
own name, as they are not the best evidence of the fact the nature 
of the case admits of. Walker vs. McMahan, 1st Tr., 130. 

Books of accounts, of a farmer or planter, are not admissible in 
evidence Jeter vs. Martin, 2d Brevard, 156. 

The books of a schoolmaster regularly kept, are not admissible to 
prove his account. Polzer vs. Cranston, 2d M'C, 328. 

The books of the keeper of a billiard table, are not admissible evi- 
dence. Boyd vs. Ladson, 4th M'C, 76. 

Entries must be regular and particular . 

Entries made in the front leaf of a tradesman's books, before the 
first page, and not in the regular course of charges, have a suspicious 
appearance, and therefore not proper to go to a jury. But the plaintiflf 
may rely on other testimony, if he thinks proper. Lynch vs. M'Hu- 
go, 1st Bay, 33. 

A memorandum book, kept by the master workman of mechanics, 
written some in ink, and some with a pencil, is not admissible, with 
his (defendant's) oath to prove the loss of daj 's work by plaintiff's 
slave, who was hired to the defendant ; though that might have been 
the customary way of keeping such account. McKewn vs. Barksdale, 
2dN. & M'C, 17. 

A shoe-maker's book, to which entries were transferred from a slate, 
without proving who made the entries on the slate, or that they were 
daily transferred, not c vidence. Drummond vs. Hyams; Harper, 268. 

When a shop-keeper, himself, sold and delivered goods to a party, 
and during the same day, the entries were made by another person, 



LAW OF MAGISTRATES. 187 

who occasionally acted as clerk for him, it was held, that the book 
was no evidence of the debt, and that the evidence was inadmissible. 
Harris vs. Caldwell, 2d M'Mullan, 133. 

Where the entries in the plaintiff's book, which was offered in 
evidence, were in part made from memoranda taken by his slave, at 
the time of delivery of the articles, and partly from memoranda made 
by the defendants themselves, held, that the entries were not admissi- 
ble in evidence, and that the plaintiff was not a competent witness 
to prove them. Venning vs. Hacker & Siiiiezer, 2d Hill, 584. 

What may, or not, he proved by book entry. m 

The books of a bricklayer, or other mechanic, as well as the mer- ^, . , 

•' ' Special 

chant, are admissible to prove the performance of a particular job of'^gf^i'^"'' 
work in the course of his trade, and of articles furnished. But the 
articles must be specified, and a general charge for work and labor is 
not good. Administrator of Lynch ads Petrie, 1st N. & M'C. , 130. 
A tnilor's shop book of entries, <s not competent evidence to prove 

^ . Nor verbal 

a verbal order of the defendant, to let his ward have clothes. De as order. 
ads Darby, 1st N. & M'C, 436. 

If a merchant's book of original entries shew that the goods 
charged to defendant were delivered to a third person, the entries, 
supported by plaintiff's oath, are not, of themselves, enough to charge 
the defendant. The order, direction, or request, of the defendants, 
must be proved by other evidence. Kinloch, Philips & Co., vs. 
Brown, 1st Rich., 223. 

A party is never permitted to be a witness in his own cause, except Nor money 
in the single case of book entries, and then only to such entries as 
embrace the usual items of a merchant's, such as goods, wares, and 
merchandise ; but he is never suffered to be witness to prove an 
entry for money lent, or money paid, for the use of another, or any 
special contract whatever. Ferguson vs. Ford, MSS. Dec. 1826. 

The books of a tradesman or mechanic are admissible in evidence Nor work 
only to prove the performance and delivery of work done within the °" ** ^ °^' 
mechanic's shop. Where the work is done outside of his shop, or on 
the premises of the party charged, sOch as building or repairing a 
house, or any other fixture, there can be no necessity for books, for 
the work is apparent and palpable. St. Philip's Church, ads White, 
2d McMullan, 306. 

The books of accounts of tavern keepers, shop-keepers, or retailers j^^^^ ,,^^1^^., 
of spirituous liquors, shall not be admitted, allowed or received, as^^^'Jj®^| 
evi(Jence ia any Court having a right to try the same, of any debt ''""'• 



188 



LAW OF MAGISTRATES. 



By clerk. 



]f clerk is 
absent. 



By part^. 



Sale by tlie 
wife. 



By colored 
persons. 



Must be a 
legal interest. 



contracted, or monies due, for spirituous liquors sold in less quantity 
than a quart. 6th S. L., 318. 

How entries must he proved. 

Entries made in merchant's books, must be proved by the clerk 
who made them, if in the State. Tunno, vs. Rogers & McBride, 1st 
Bay, 480. 

A book account may be proved by proving the handwriting of the 
clerk who made the entries, if he be out of the State. Elms vs. 
Chevis, 2d M'C, 349. 

A merchant may prove his book entries, in any case where it 
becomes necessary to have them proved. Black vs. Shooler, 2d 
M'C, 293. 

Where the plainfiff, a merchant, was absent from the State at the 
trial of the cause, held, that proof of the original entries being in his 
hand writing, was incompetent evidence. The only cases where the 
entries have been proved by others than those who made them, have 
been in cases tried on writs of enquiry. It is never permitted, where 
the defendant appears and defends the case. Douglass vs. Hart, 4th 
M'C, 257. 

A merchant's account cannot be proved by evidence of the entries 
in his books, unless the books are produced in Court ; and his residing 
at a distance from the district, in M'hich the suit is brought, does not 
furnish ground for an exception to the rule; Furman and Smith vs. 
Peay, 2d. Bailey, 394: but a disinterested witness, \vho made the 
entries, may be so examined without the production of the books; for 
the entries in the book are mere memoranda, to which he may refer 
to refresh his memory. Nicholson vs. Withers, 2d M'C, 428. 

Where entries were made by the plaintiff, of goods delivered by 
his wife, in his absence, they must be proved by the wife. Hurtz 
vs. executors Neufville, 2 M'C, 138. 

Bock entries made by a free negro, cannot be received in evidence, 
on the oath of a white person to his hand-writing. Groning vs. 
Devana, 2d Bailey, 192. 

3i. Competency and credibility of witnesses. 
A witness may be incompetent from interest, from public policy, 
from absence of religious obligations, or from caste. 

Incompetency from interest. 
To render a witness incompetent, the interest must be a legal in- 
terest in the event of the suit, or in the record, as contrai^istinguished 



LAW OF MAGISTRATES. 189 

from mere prejudice or bias, arising from the circumstance of rela- 
tionship, friendship, or any other of tho numerous motives by which 
a viitneso maybe supposed to be influenced. 1st St?.rkie, 102. 

A mere doubt that a witness would be liable in Equity, when not 
liable at law, is not sufficient to exclude him as incompetent. Sims 
vs. Sims, 1st Tr., 131. 

If a party be really interested in the event of a cause, he is not com- Appreiien - 
petenf, although he does not apprehend that his interest is a legal one, interest. 
for it would be exceedingly dangerous to violate a general rule, 
because the witness does not understand his legal responsibility. If a 
witness suppose that he is under an lionoi-ary though not a legal w 
engagement, as to indemnify the bail, he is still competent, for ho is 
under no binding engagement, and it would be highly inconvenient to 
make competency in such case to depend on the witnesses notions of 
propriety, and would savour of inconsistency to found a suspicion of 
his veracity upon a just and honorable feeling. — 1st Starkie, 102. 

That a witness merely believes himself interested in the event of a 
suit, does not render him incompetent, Havis vs. Barkley. Har. 63. 

The interest must be a present, certain, vested interest, andnotM"stbe 

direct and 

uncertain or contingent. And therefore the heir apparent to an estate certain, 
his competent to give evidence in support of the claim of the ancestor, 
although one who has a vested interest as a remainder-man, is incom- 
petent. 1st Starkie, 103. 

Where the interest is of a doubtful nature, the objection goes to the 
credit, not the competency of the witness. The possibility of an • 
action being brought against the witness, in case his testimony shall 
not prevail, and the tendency of his testimony to render his liability 
less probable, will not exclude him. 1st Starkie, 104. 

The declarations of a witness, that he is interested in the event of 
a suit, are not, per se, sufficient to deprive the party by whom he is 
called, of the benefit of his examination. Cotchet vs. Dixon, 4th 
McC, 311. 

To exclude a witness, it is not enough that he has an interest in 
the subject matter of litigation; it must be an interest in the event of 
the particular cause. — Ibid. 

A surety of deceased debtor is admissible as a witness, to disprove 
a demand against the estate of his principal: and it makes no differ- 
ence, that he believes the estate to be insolvent, and that the demand, 
which he is called to disprove, is of superior degree, and will exhaust 
the assets. His interest to increase or preserve the fund, out of 
which the debt, for which he is surety, is to be paid, is not that cer- 



190 LAW OF MAGISTRATES. 

tain, direct, and immediate interest, which affects the competency of 
a witness. Ogiervs. Deas; 1st Bailey, 473. 

The obtaining of means to pay a debt does not create such an inte- 
rest as will disqualify a witness, — the interest must be certain and 
direct. A debtor who has delivered property to another in order to 
defraud his creditors, and afterwards sells the property to a bona fide 
purchaser, on being released, is a competent witness to sustain the 
purchase. Ex'ors of Caston vs. Ballard; 1st Hill, 406. 
In the iinme- A wifness is incompetent where he is a party, though but a nominal 
legal result. P^J^i'ty, to the suit; or is a party in beneficial interest; or is quasi a 
* party, from having entered into a rule of Court or contract that another 
cause in which he is a party shall abide the same result with that in 
which he purposes to give evidence; or where the immediate effect of 
the verdict will be to increase or diminish a fund, in which he has a 
joint interest; as where the bankrupt, or a creditor on a bankrupt's 
estate, seeks to increase the fund; or to deprive the witness of the 
enjoyment of an interest in possession; or place him in the immediate 
possession of a right. 1st Starkie, 106. 

The maker of a promissory note is not a competent witness for the 
indorser, in any action against him by the holder, when the note was 
indorsed for the accommodation of the maker. He is liable over to 
the indorser for costs, and therefore does not stand indifferent between 
the parties. Chur. vs. Keckeley; 1st Bailey, 479. 

A witness, ofl^ered by the plaintiff's, had purchased the property in 
dispute from the defendant, on the condition that he was not to pay 
the stipulated price, if the defendant failed to establish his title in the 
action. i/isZ^Z, that he had acquired, by his contract, an interest in 
the record to defeat the defendant, which was not counterbalanced by 
a similar interest as to the plaintiffs, and he did not therefore stand 
indifferent between the parties, and was incompetent. Jones vs. 
McNeill; 2d Bailey, 466. 

The payee of a promissory note, if not actually interested, is a com- 
petent witness, in an action by the holder against the maker, to prove 
that it has been paid. Bobo vs. Bostick; 2d Bailey, 106. 

An executor, party to an issue of devlsavit vel non, though he takes 
• nothing by the will, cannot be examined as a witness in the cause. 

Ex'or. of Butler vs. Brown; 4th McC, 25. 
Right of Where the witness is called for the plaintiff", with whom he is a 

liability to co-partner; or where the witness is a co-partner with the defendant 
in the subject matter of the suit, and would be liable to contribution 
in case the defendant failed in his defence. And as a co-partner, 
by reason of his liability to contribution, would not be a competent 



contribute. 



LAW OF MAGISTRATES. 191 

witness for the defendant, to whom, on a verdict against him, he would 
be liable to cnntribute, he is, on the other hand, a competent witness 
for the plaintiff in action against the co-partner. 1st Starkie, 107. 

Where all the witnesses to a will are legatees, and are to take a 
beneficiary interest under it, none ofthem can be permitted to prove 
it, unless a release is given by the legatee, who is offered as the wit- 
ness. Dickson vs. Bates; 2d Bay, 448. 

Where two gave their joint and several note, upon which, one was 
sued, the other cannot be a witness for the defendant Kile vs. Gra- 
ham; 1st McC, 552. 

A party is an incompetent witness to increase a fund out of which 
he is to receive a dividend; and where the plaintiff was insolvent, and 
had assigned his estate, under the Prison Bounds Act, to all bis credi- 
tors, and a creditor was offered as a witness, who said that if the 
plaintiff recovered, he expected to be paid, otherwise not; Held, that 
.the witness was incompetent. Cleverly vs. McCuUough; 2d Hill, 445. 

It seems that, in general, where the witness is so far interested in a Liability 
fact upon which the verdict depends, that if his party failed, and the"^^'" 
fact were contrary to his testimony, he would be liable to that party 
for the debt, damages or costs, he would be incompetent; for in every 
such case he would lie under an interest to represent the fact one way, 
rather than the other, in favor of his party rather than against him, in 
order to get rid of his own liability, which, if the fact were otherwise, 
would be consequent on a verdict against that party. 1st Starkie, 111. 

One who had guarantied the ultimate payment of a bond, was held 
an incompetent witness to prove that it had not been paid to himself, 
while it was in his possession, assigned in blank. Stoney vs. McNeill; 
Harper, 156. 

A vender of goods is not a competent v/itness to support the title of 
his vendee against third persons, claiming adversely to his own title. 
Saunders vs. Addis; 1 Bailey, 49. 

The surety to a bond to the sheriff, to indemnify him in making a 

levy, is not a competent witness for the sheriff, in aii action against 

him for the trespass. Terry vs. Belcher; 1st Bailey, 568. 

If the interest be of the nature above described, its magnitude is not 

, , , • . ., , ... Magnitude 

material; and the objection must prevail, however minute the interest of interest. 

may be. The reason seems to be this: a plain and simple rule is 

absolutely necessary, and if a small degree of interest did not dis- 

qualify the witness, it would be impossible to draw a practicable line 

of distinction. 1 st Starkie ,118. 



192 LAW OF MAGISTRATES. 

imerest'^"^ A witness whose interest is equal on both sides, is competent. 
Alston vs. Huggins; 2d Tr., 68S. 

Though a person be interested with the subject matter of the action, 
yet if his interest on either side is balanced, it will not affect his com- 
petency. Smyth vs. McDow; 1st M. C, 277. 

Incompetency from public policy. 

Husband and The husband and wife cannot be witnesses for each other, for their 
interests are identical; nor against each other, on grounds of public 
policy, for fear of creating distrust and sowing dissensions between 
them, and occasioning perjury. So important is this rule, that the 
law will not allow it to be violated, even by agreement; the wite 
cannot be examined against her husband, although he consent; and 
the principle is further preserved by adhering to the rule, even after 
the marriage tie has been dissolved, by the death of one of the parties, 
or by a divorce for ad*ultcry. 2d Starkie, 400. 

Whereoiie Where either of them is a party, the rule seems to be universal, 

party."" '^^ that the other is altogether incompetent in either civil or criminal 
proceedings. In an action by the plaintiff, as a feme sole, for goods 
sold and delivered, the husband is not competent (o defeat the action 
by proof of the marriage. Upon an indictment for bigamy, the real 
■wife is incompetent; and the second wife is also incompetent until the 
first marriage has been established; so in a criminal case, the wife 
is not a competent witness against any co-defendant tried with her 
husband, if the testimony concern the husband, although it be not 
given directly against the husband. 2d Starkie, 400. 

A husband cannot be received as a witness, to testify for the benefit 
of an estate, of which his wife is a distributee; although they live 
apart, deal separately, and are under bonds not to interfere with the 
property of each other. Terry vs. Belcher; 1st Bailey, 568; but a 
wife is a competent witness to testify against the interest of her hus- 
band, in a suit between third persons, if the husband himself do not 
object. Jackson vs. Heath; 1st Bailey, 355; and also, the wife may 
be a witness against her husband on a prosecution for a personal out- 
rage against herself. State vs. Boyd, 2d Hill, 238. 

Upon the same principle, the law prohibits a barrister, solicitor, or 

alid'ci'fent. attorney, from divulging that which has been reposed in him confiden- 
tially by his client. The same principle evidently applies to the case 
of an interpreter between an attorney and his client. 

Here, however, the law draws the line; and the principle of policy 
which, in the instances of husband and wife, and of attorney and 



LAW OF MAGISTRATES. 193 

client, forbids a violation of confidence, ceases to opcrater The law 
will not permit any one to withhold from the information of the jury 
any communication which is important as evidence, however secret 
and confidential the nature of that communication may have been, 
although it may have been made to a physician or surgeon, or even 
to a divine, in the course of discharging his professional duties; for 
it has even been held, that a minister is bound to disclose that which 
has been revealed to him as a matter of religious confession. 1 Star- 
kie, 70. 

Upon a principle of humanity, as well as of policy, every witness witness not 
is protected from answering questions, by doing which, he would criminate 
criminate himself. Of policy, because it would place the witness 
under the strongest temptation to commit the crime of perjury; and 
of humanity, because it would be to extort a confession of the truth 
by a kind of duress, every species and degree of \vhich the law abhors. 
Ibid. 

Want of religious obligation. 

Before a witness takes the oath, he may be asked whether hoReiieioua 
believes in the existence of a God, in the obligation of an oath, and''^''^*'- 
in a future state of rewards and punishments ; and if he docs, ho may 
be admitted to give evidence. And it seems that he ought to be 
admitted if he believes in the existence of a God, who will reward or 
punish him in this world, although he does not believe in a future 
state. 1st Starkie, 93. 

A person who does not believe in future rewards and punishments, 
but that our evil deeds will all be punished in this world, and that 
we shall exist immortal in a future state, exempted from punishment 
for the deeds done in the body, is a competent witness. Farnandis 
TS. Henderson, Rice's Digest, 403. 

In criminal cases, where a person of tender years is a material 
witness, it is usual for the Court to examine the witness as to his infancy. 
competency to take an oath befoce he goes before the grand jury. 
And if such a witness be found incompetent for want of proper instruc- 
tion, the Court will, in its discretion, put off the trial, in order that 
the party may in the meantime receive such instruction as will qualify 
him to take an oath. Neither the testimony of the child without 
oath, nor evidence of any statement which he has made to any other 
person, is admissible. 1st Starkie, 94. 

The crimes which render a person incompetent, are treason, felony, 
all offences founded in fraud, and which come within the general 
25 



194 LAW OF MAGISTRATES. 

notion of the crimin falsi of the Roman law, as perjury, forgery, pira- 
_ cy, swindling and cheat'ng. So also, barretry, the bribing a witness 
to absent himself from a trial, in order to get rid of his evidence; so 
also the judgement on an attaint for a false verdict, will render the 
party so convicted incompetent : so also, as it seems, one who has 
been convicted of winning money by fraud, or ill practice at certain 
gafmes, would be disabled by the Statute 9 Anne, c. 14, sec. 5, from 
being a witness, since that statute not only imposes a penalty, but 
directs that the party shall be deemed infamous. But a conviction 
for keeping a gambling house does not disqualify the defendant. 
Ibid, 95. 

In order to incapacitate the -party, the judgement must be proved 
as pronounced by a Court possessing competent jurisdiction. Proof 
of the verdict or conviction without the judgement, is insufficient, 
since it may have been quashed on motion in arrest of judgement. 
And the judgement must be proved by the record in the usual way, 
but it is not material to shew that judgement has been executed. 
Ibid, 96. 

Incompetency from caste. 
A free negro is an incompetent witness in any case where the 

Slaves in ° '^ " . _ 

civil cases, rights of white persons are concerned, nhite vs. Holmes, 1st M'C, 
4.30. 

A free person of colour is not a competent witness, in any case, 
although both the parties to the suit are of the game class with him- 
self. Groningvs. Devaca, 2d Bailey, 192. 

But the declarations of a negro may be given in evidence, when 
they constitute a part of the res gest<B. Parris vs. Jenkins, 2d Rich., 
106. And in an action for 'he breach of warranty of the soundness of a 
slave, the declarations of the slave, by which disease was detected, 
were held admissible evidence as inducement, and from the necessity 
of the case. Gray vs. Young, Harper, 3S. 

Criminal The evidence of all free Indians, without oath, and the evidence of 

any slave, without oath, shall be allowed and admitted in all causes 
whatsoever, for or against another slave accused of any crime or 
offence whatsoever; the weight of which evidence being seriously 
considered, and coropared with all other circumstances attending the 
case, shall be left to the conscience of the justices and freeholders; 
7th S. L., 401, sec. 13 : also, the evidence of any free Indian or 
slave, without oath, shall in like manner be allowed and admitted in 



CZsiA 



LAW OF MAGISTRATES. 195 

all cases against any free negroes, Indians, (free Indians, in amity 
with this government, only excepted) mulatto or mestizo. — Ibid, sec. 
14. 

Incompetency, how shewn. 

The presumption is, that a person, not a party to the record, is By party 
competent, and the party alleging his incompetency must shew it, " ^°'"^' 
either by examination of the witness on his voir dire, or by the testi- 
mony of other witnesses. Cotchet vs. Dixon, 4 M'C., 31 1. 

Competency, how restored. 
The competency of a Avitness may be restored as well by an as- in case of 

• 1 1 1 r 1 • • y-1 interest. 

signment without warranty, as by a release oi his interest. Cates 
vs. heirs of Wacter, 2d Hill, 442. 

The heirs or legatees of an estate are incompetent witnesses in 
behalf of an estate, in a suit brought by the executors, but ii is an 
interest that may be released, and the release need not necessarily be 
made to the defendant, but may be made to any one who will accept; 
1st Rice's Digest, Tit. Evidence, 423 : b-it a dormant partner cannot, 
by releasing his interest, render himself a competent witness for the 
ostensible partner, in a suit brought by the latter upon a contract 
made by him, within the objects, and for the benefit of the co-part- 
nership. His liability for the debts of the co-partnership, and his 
consequent interest to increase the co partnership fund, cannot be 
discharged, or removed, by his own release; and although there should 
be no debts, his liability to the opposite party, for the costs of the 
suit, renders him incompetent ; Pickett vs. Cloud, 1st Bailey, 362. 

The objection to competency on the ground of infamy, may beincaseof 
answered, 1st, by proofthat the party has been admitted to his clergy, 
and undergone such punishment as is equivalent to clerical purgation 
at the common law, or that he has undergone the sentence according 
to the late statutes ; 2d, by proof of pardon ; 3d, by proof of the rever- 
sal of the judgement. 1st Starkie, 96. 

Credibility, how impeached. 

The credit of a witness may be impeached either by cross exami- 
nation, or by general evidence affecting his credit, or by evidence 
that he has before done or said that which is inconsistent with his 
evidence on the trial, or, lastly, by contrary evidence as to the facts 
themselves. 1st Starkie, 181. 

Irrelevant questions may be put to a witness on his cross-exami- 



196 



LAW OF MAGISTRATES. 



By cross- 
csamination 



General 
evidence. 



Proof of 
declaration. 



Contradic- 
tion. 



A party not 
allowed to 
discredit bis 
own witness. 



nation, with the view of obtaining from him contradictory or inconsis- 
tent answers, and of thus impeaching and destroying his credit ; but 
they cannot be asked with a view to calling other witnesses to con- 
tradict his answers: and the presiding judge may, in his discretion, 
arrest a cross-examination, which extends to a wide and unprofitable 
range of interrogations. Jones vs. McNeill, 2d Bailey, 466. 

When the credit of a witness is attacked, the first question to be put 
is, "what is the general character of the witness, good or bad?" If 
the answer be that the character is bad, then the individual opinion of 
the person under examination may be obtained, "would you believe 
him on his oath?" Some have thought it most expedient to ask, in the 
first instance, "what is the general character as to veracity?" Now, 
although there can be no objection to such a question, as the enquiry 
relates to the veracity, yet it is not as proper as the more general 
question, because the witness may be a very bad man, and yet may 
not have established any character as to veracity, and if he be a man 
of bad character, that is a very good reason why he should be disbe- 
lieved, Dollard vs. Dollard; 1st Rice; Title Evidence, 439. 

To impeach the credibility of a witness, evidence of particular facts 
cannot be gone into, only of general reputation. State vs. Alexander; 
2d M. C, 171. 

The credit of a witness may be attacked, by proof that he had said 
"that on some occasions he would swear a lie." Anonymous; 1st 
Hill, 251. 

It is a general rule, that whenever the credit of a witness is to be 
impeached by proof of any thing that he has said or declared, or done 
in relation to the cause, he is first to be asked, upon cross-examination, 
whether he has said or declared, or done that which is intended to be 
proved. If the witness admit the words, declaration, or act, proof on 
the other side becomes unnecessary, and an opportunity to the witness 
of giving such reasons, explanations or exculpations of his conduct, if 
any there be, as the circumstances may furnish; and thus the whole 
matter is brought before the Court at once, which is the most oonve- 
nient course. 1st Starkie, 183. 

Although the answer of a witness to an immaterial question cannot 
be contradicted to impeach his credit, yet, if the question is even indi- 
rectly material to the issue, the answer of the witness may be contra- 
dicted. Smith vs. Henry; 2d Bailey, 118. 

A party cannot discredit the testimony of his own witness, or show 
his incompetency; for it would be unfair that he should have the benefit 
of the testimony, if favorable, and be able to reject it, if the contrary. 



LAW OF MAGISTRATES. 197 

Where, however, a party is under the necessity of calling a witness 
for the purpose of satisfying the formal proof which the law requires, 
he is not precluded from calling other witnesses who give contradic- 
tory testimony. And even where a witness by surprise gives evidence 
against- the party who called him, that party will not be precluded 
from proving his case by other witnesses. 1st Starkie, 185. 

The rule that a party cannot impeach his own witness, is confined 
to the introduction of general evidence to destroy his credit; he may 
call other witnesses to contradict him as to particular facts relevant to 
the issue. Perry vs. Massey; 1 Bailey, 32. 

A party cannot bring evidence to confirm the character of a wit- Evidence, in 

, !• /- 1 • II • I 1 • 1 confirmation 

ness, before the credit of that witness has been impeached, either upon ofwuuess. 
cross-examination, or by the testimony of other witnesses; but if the 
character of a witness has been impeached, although upon cross- 
examination only, evidence on the other side may be given to support 
the character of the witness by general evidence of good conduct. 
1st Starkie, 186. 

^tli. The various kinds of testimony and their admissibility. 
Admissions. 
The admissions of a party to the suit against his interest, „ 

' •' ° 'By party to 

are evidence in favor of the other side, whether made by the real "'^ suit, 
party on record, or by a nominal party who sues as a trustee for the 
benefit of another, or whether by the party who is really interested in 
the suit, though not named on the record. 1st Philip's Ev., 74. 

The admissions of a defendant are always considered the best evi- 
dence against him; and a fact strongly and often asserted by the other 
party or his agent, in the presence of the defendant, touching the 
principal matter, and not denied by him, may be considered as admit- 
ted. Hendrickson, adm'r of Ryer, vs. Miller; 1st M. C, 296, 

An acknowledgement of a debt may be frequently implied from the implied from 
conduct and demeanor of a person, no less than from an express admis- *^°"'^""^'* 
sion; and the forbearance and non-interference of one party, with 
full knowledge of adverse acts done by another party, is a circum- 
stance to shew his acquiescence. 1st Philips' Ev., 83. 

A community of interest or design, will frequently make the decla- community 
ration of one, the declaration of all. Thus in the case where part- °^'"'"®^'' 
ners, or others, possess a community of interest in a particular subject, 
not only the act and agreement, but the declaration of one in respect 
of that subject matter, is evidence against the rest. The admission of 
one of several makers of a joint and several promissory note, that it 
has not been paid, is evidence against all. Such an admission, how- 
ever, ought to be clear and unequivocal. 2d Starkie, 25. 



198 LAW OF MAGISTRATES. 

By partner. A lettei* Written by one co-partner after the dissolution of the co- 
partnership, acknowledging the justness of a debt, will bind the other. 
Simpson & Morrison vs. Geddes, 2d Bay, 533. But, the admission 
of a debt by one partner who had become insolvent, made a long time 
after the dissolution of the co-partnership, is not admissible to charge 
the others. Chardon vs. Oliphant, et. al.; 2d Tr., 685. 

By agent. The Statement or representation of an agent, in making an agree- 

ment, or in doing an act within the scope of his authority, is evidence 
against the principal himself, and equivalent to his own acknowledge- 
ment. 1st Philips' Evi., 77. 

The declarations of an agent in relation to things done by him, in 
the regular course of his agency, is competent evidence against his 
principal. Clough vs. Litle; 1st Rice. Tit. Evi., 404. 

On the same principle, if one party refers another for information on 
a disputed fact, to a third person as authorized to answer for him, or 
employs an agent to make certain propositions respecting a transaction 
between himself and another, he is bound by what his agent says, or 
does, within the scope of his authority, as much as ifit had been said, 
or done, by himself. 1st Phillips' Evi., 81. 

By a wife. But notwithstanding a community of interest, the declaration of the 
wife will not, in general, bind the husband. But where the authority 
ofthe wife to act as agent to her husband can be presumed, her decla- 
rations are like those of any other agent; accordingly, the admission 
ofthe wife, as to an agreement for suckling a child, was held to be 
evidence against him. So vs^here an action was brought by the direc- 
tion ofthe wife, in the name of her husband, to recover a sum of money 
which had been taken from her, on suspicion that it was the produce 
of stolen property, it was held, that what she had said, (in the absence 
ofthe husband) respecting the money, when examined on a charge 
of being concerned in the robbery, was evidence for the defendant. 
So in an action against the husband for goods sold to his wife during 
the time when he occasionally visited her, it vi^as held, that a letter 
subsequently written by the wife, acknowledging the debt, was evi- 
dence. 2d Starkie, 26. 

Thewhoieis Although the whole confession must be received and not garbled, 
yet the jury are not bound to give implicit faith to the whole or any 
part. Str.ith vs. Hunt; 1st McC, 449. 



to be taken . 



Confessions. 
A confession, where it is voluntary, is one of the strongest proofs of 

In criminal , o o i 

cases. guilt; for it cannot be supposed that a person, really innocent, would 



LAW OF MAGISTRATES. 199 

voluntarily subject himself to infamy and punishment. Many of the 
rules applicable to admissions in civil cases are applicable to those in 
criminal proceedings, but there are some which are peculiar to the 
Jatter. 2d Starkie, 27. 

A confession can never be received in evidence, where the defen- 
dant has been iRfluenced by any threat or promise. To say, that it 
will be better for him if he will confess, or vv^orse if he will not, is suffi- 
cient to exclude the consequent declaration by the prisoner; for the 
law cannot measure the force of the influence used, or decide upon its 
effect upon the mind of the prisoner, and therefore excludes the decla- 
ration, if «nt/ degree of influence has been exerted. And where a 
confession has once been induced by such means, all subsequent 
admissions of the same, or of the like facts, must be rejected, if they 
have resulted from the same influence. 

It is, however, a question for the Court, and not for the jury, to 
decide, whether under the particular circumstances, the confession 
be admissible. Ibid. 

It is a general rule, founded upon principles already adverted to. Not evidence 
that the admission or confession of one defendant is not evidence l^other. 
against any but himself; except, indeed, such a privity and community 
in the same original design be proved, as to render that which has 
been said or done by one, in furtherance of the common object, fair 
and reasonable evidence of the general design and project itself. 2d 
Starkie, 31. 

Where several are tried at the same time, and the confession of one 
implicates another, the evidence cannot on that account be rejected! 
the usual course is, for the Court to inform the jury that the confes' 
sion is evidence against that party only by whom it is made. Ibid. 
But the confessions of a slave of his own guilt as principal, are admis- 
sible in evidence, on the trial of a free white man, as accessary before 
the fact. State vs. Sims; 2d Bailey, 29. 

Hearsay. 
Hearsay evidence of a fact, is not admissible. And the same prin- Notartmissi- 
ciple is applicable to statements in writing, no less than to words spo- 
kon; whether spoken or written, they are equally inadmissible in 
evidence. The only difference between them in this respect, is, that 
there is a greater facility of proof in the one case than in the other; 
a written account is proved to be genuine, by proof of the hand- wri- 
ting; but the genuineness of mere oral declarations must depend upon 
the memory and accuracy of the witness, who professes to repeat 



200 LAW OF MAGISTRATES. 

ihem. To this general rule there are some exceptions, which will 
be separately considered. Phillip's Evi., 186. 
In case of Hearsay and reputation, (which latter is the hearsay of those who 
may be supposed to have known the fact, handed down from one to 
another,) have been admitted as evidence in cases of pedigree. 
Thus, declarations of deceased members of the family are admissible 
evidence to prove relationship; as, who was a person's grand-father, 
or whom he married, or how many children he had, or as to the tinoe 
of a marriage, or of the birth of a child, and the like, of which i^ 
cannot be reasonably presumed that better evidence is to be procured. 
Ibid. 
Time of On a question, whether a testator, at the time of making his will, 

as"o'piace.° ^as of full age", a written memorandum of his deceased father, stating 
• the time of his birth, has been admitted to be good evidence. But 

such declarations are not admissible as to place of birth. 1st Phillip's 
Evi., 195. 
Questions of '^''® declarations of deceased persons, who shall appear to have 
boundary, i^pgjj j^ ^ situation to possess the information, and not interested, are 
admissible, on questions of boundaries ; as the declarations of survey- 
ors, chain-carriers, &c. Spear ads Coate, 3d M'C, 227. 
_ , . The declarations of deceased persons have also been admitted, in 

Declarations r ' 

against cases where they appear to be made against their interest: as, entries 

interest. _ _ J rr & ' » 

in their books, charging themselves with the receipt of money on the 
account of a third person, or acknowledging the payment of money 
due to themselves. 1st Phillip's Evi., 207. 

The declarations of the payee of a note, made before endorsement, 
against his interest, are admissible, but not after he has endorsed it. 
Crayton & Sloan vs. Collins; 2d McC.,457. 
Dying decia- '^^^ (^jing declarations of a person, who has received a mortal 
rations. injury, that is, declarations made under the apprehension of death, are 
constantly admitted in criminal prosecutions, and are not liable to the 
common objection against hearsay evidence, The principle of this 
exception to the general rule is founded partly on the awful situation 
of the dying person, which is considered to be as powerful over his 
conscience as the obligation of an oath, and partly on a supposed 
absence of interest on the verge of the next world, which dispenses 
with the necessity of cross examination. 1st Phillips' Evi., 216. 

The deceased, on the day previous to his death, and when conscious 
that he was in extremis, deposed to the circumstances under which the 
mortal blow was given; and on the next day, when he was fully con- 
scious of approaching death, the deposition was read over to him, and 



LAW OF MAGISTRATES. 201 

he said that, "it was as nigh right as he could recollect;" held, that 
the deposition was admis^iible in evidence as the dying declarations 
of the deceased. State vs. Ferguson, 2d Hill, 619. 

Hearsay is often adii::itted in evidence, as part cf the res gesta; the Hearsay, 
meaning of which seems to.be, thatwhere it is necessary in the course ^^esu. 
of a cause to inquire into the nature of a particular act, or the inten- 
tion of the person who did the act, proof of what the person said at 
the time of doing it, is admissible evidence, for the purpose of shew- 
ing its true character. 1st Phillip's Evi., 219. Thus, the declara- 
tions of a party, when accompanied by an act, may be received in 
evidence, as explanatory of that act, as constituting a part of the res 
gestca. Turpin vs. Branno'n, 3d M'C, 261. 

Presumptions 

Are either conclusive pr disputable. The first are settled rules of 
law, determining the quantity of evidence requisite for the support 
of any particular averment, which may not be overcome by any 
proof that the fact is otherwise. The second, are rules which, in 
the absence of opposing evidence, infer one fact from the proved 
existence of another, and which, once attaching from facts proved, 
throw the burden of proof of the contrary on the opposite party. 1st 
Greenleaf, 15 and 33. 

Conclusive presumptions. 

After twenty years possession of lands, a grant will be presumed, prom lapse 
but in the absence of other evidence, the date of the grant cannot be g,ams*'wiii 
referred to an earlier period than the commencement of the posses. '^^ ^"^^^""'^ ' 
sion. Sims vs. Meacham, 2d Bailey, 101. 

A continuous adverse possession of land for twenty years by dif- 
ferent persons and at different times, is sufiicient to raise the pre- 
sumption of a grant, McLeod vs. Rogers, 2d Rich., 19. 

When an authority is given by law to executors, administrators, j^egai 
guardians, or other officers, to make sales of lands, upon being duly ^°''™^''"^^- ■ 
licensed by the Courts, and they are required to advertise the sales 
in a particular manner, and to observe other formalities in their pro- 
ceedings, the lapse of sufficient time, (which, in most cases, is fixed 
at thirty years,) raises a conclusive presumption that all the legal 
formalities of the sale were observed. 1st Greenleaf, sec. 20. 

The records of a Court of justice are presumed to have been cor-jm,jgj^i 
rectly made; a party to the record is presumed to have been interested records. 
in the suit; and after verdict, it will be presumed, that those facts, 
26 



202 



lav; of magistrates. 



Consequen- 
ces of one's 
act. 



Estoppels 



Infants and 

married 

women. 



without proof of which the verdict could not have been found, were 
proved, though they are not expressly and distinctly alleged in the 
record; provided it contains terms sufficiently general to comprehend 
them in fair and reasonable intendment. Ibid, sec. 19. 

A sane man is conclusively presumed to contemplate the natural 
and probable consequences of his own acts ; and therefore, the intent 
to murder is conclusively inferred from the deliberate use of a deadly 
weapon. So, the deliberate publication of calumny, which the pub- 
lisher knows to be false, or has no reason to believe to be true, raises 
a conclusive presumption ot malice. Ibid, sec. 18. 

Estoppels may be ranked in this class of presumptions. A man is 
said to be estopped, when he has done some act, which the policy 
of the law will not permit him to gainsay or deny. Ibid, sec. 23. 

In regard to recitals in deeds, the general rule is, that all parties 
to a deed are bound by the recitals therein, which operate as an 
estoppel, working on the interest in the land, if it be a deed of con- 
veyance, and binding both parties and privies, privies in blood, privies 
in estate, and privies in law. Ibid, sec. 23. 

Thus also, a grantor is, in general, estopped by his deed, from 
denying that he had any title in the thing granted. But this rule 
does not apply to a grantor, acting officially, as a public agent or 
trustee. Ibid, sec. 24. 

So also, a tenant, and all claiming under him, are estopped from 
disputing the title of the landlord. Anderson ads Darby, 1st N. & 
M'C, 369; and Love vs. Dennis, Harper, 70. 

Conclusive presumptions of law are also made in respect to infants, 
and married women. Thus, an infant, under the age of seven years, 
is conclusively presumed to be incapable of committing any felony, 
for want of discretion ; and under fourteen, a male infant is presumed 
incapable of committing a rape. A female under the age often 
years is presumed incapable of consenting to sexual intercourse. 
Where the husband and wife have cohabited together, as such, and 
no impotency is proved, the issue is conclasively presumed to be 
legitimate, though the wife is proved to have been at the same time 
guilty of infidelity. And if a wife act in company of her husband, in 
the commission of a felony, other than treason or homicide, it is con- 
clusively presumed, that she acted under his coercion, and conse- 
quently without any guilty intent. 1st Greenleaf, sec. 28. 

Disputable presumptions. 
As men do not generally violate the penal code, the law presumes 



LAW OF MAGISTRx\TES. 203 

every man innocent ; but some men do transgress it, and therefore Presumption 

., . .1 , 1 . . rr.1 ■ 1 1 of innocence. 

evidence is received to repel this presumption. Ihis Jegal presump- 
tion of innocence is to be regarded by the jury, in every case, as 
matter of evidence, to the benefit of which the party is entitled. And 
where a criminal charge is to be proved by circumstantial evidence, 
the proof ought to be not only consistent with the prisoner's guilt, 
but inconsistent with any other rational conclusion. On the other 
hand, as men seldom do unlawful acts with innocent intentions, the From unlaw- 
law presumes every act, in itself unlawful, to have been criminally 
intended, till the contrary appears. Thus, on a charge of murder, 
malice is presumed from the fact of killing, unaccompanied with cir- 
cumstances of extenuation ; and the burden of disproving the malice 
is thrown upon the accused. The same presumption arises in civil 
actions, where the act complained of was unlawful. So also, as 
men generally own the personal property they possess, proof of pes- possession. 
session is presumptive proof of ownership. But possession of the 
fruits of crime, recently after its commission, is, prhna' facie, evidence i,, case of 
of guilty possession ; and, if unexplained, either by direct evidence, ^'°''^" ^""''^■- 
or by the attending circumstances, or by the character and habits of 
life of the possessor, or otherwise, it is taken as conclusive. This 
rule of presumption is Jiot confined to the case of theft, but is applied 
to all cases of crime, even the highest and most penal. Thus, upon j^rsonand 
an indictment for arson, proof that property, which was in the house '^"'''''^'^y- 
at the time it was burnt, was soon afterwards found in the possession 
of the prisoner, was held to raise a probable presumption, that he 
was present and concerned in the offence. The like presumption is 
raised in the case of murder, accompanied by robbery ; and in the 
case of the possession of an unusual quantity of counterfeit money. 
1st Greenleaf, sec. 34. 

Presumptions from course of Trade. 

Where a bill of exchange, or an order for the payment of money, Possession of 
or delivery of goods, is found in the hands of the drawee, or a pro- of exchange. 
missory note is in the possession of the mali^er, a leigal presumption 
is raised, that he has paid the money due upon it, and delivered the 
goods ordered. 

So, a receipt for the last year's or quarter's rent, is prhna facie 
evidence of the payment of all the rent previously accrued. But the 
mere delivery of money by one to another, or of a bank check, or the Delivery of 
transfer of stock, unexplained, is presumptive evidence of the payment 
of an antecedent debt, and not of a loan. The same presumption 



204 



LAW OF MAGISTRATES. 



payment of 
draft. 



Order for 
goods. 



Division of 
land. 



Debt by 
specialty. 



Officers. 



Private 
business. 



Public 
records. 



Private 
writings. 



arises upon the payment of an order or draft for money, namely, that 
it ,was drawn upon funds of the drawer, in the hands of the drawee. 
But in the case of an order for the delivery of goods it is otherwise, 
they being presumed to have been sold by the drawee to the drawer. 
Thus, also, where the proprietors of adjoining parcels of land agree 
upon a line of division, it is presumed to be a recognition of the true 
original line between their lots. 1st Greenleaf, sec. 38. 

On the same general principle, where a debt due by specialty has 
been unclaimed, and without recognition, for twenty years, in the 
absence of any explanatory evidence, it is presumed to have been 
paid. 1st Greenleaf, sec. 39. 

The lapse of twenty years raises a presumption of payment, in the 
case of a judgement, as well as of a bond. Qucere ; Whether evi- 
dence of a plaintiff's punctuality, and of defendant's embarrassed cir- 
cumstances, is admissible to raise a presumption of payment within 
twenty years. Kennedy vs. ex'ors. of Denoon, 2d Tr., 617. 

Public duties. 

The return of a sheriff, which is conclusively presumed to be true, 
between third persons, is taken prjma faeie as true, even in his own 
favour ; and the burden of proving it false, in an action against him 
for a false return, is devolved on the plaintiff, notwithstanding it is a 
negative allegation. In fine, it is presumed, till the contrary is 
proved, that every man obeys the mandates of the law, and performs 
all his official and social duties. The like presumption is also drawn 
from the usual course of men's private offices and business, where 
the primary evidence of the fact is wanting. 1st Greenleaf, sec. 40. 

Written documents, how proved. 

All public records may be proved by copy, authenticated under 
seal, by the proper oflicer, for the great seal of the S^ate, and the 
seals of its judicial tribunals, require no proof. Courts also recognise, 
without other proof than inspection, the seals of State of other nations, 
which have been recognised by their own sovereign. The seals, 
also, of foreign Courts of Admiralty, and of notaries public, are recog- 
nised in the like manner. Public statutes, also, need no proof, being 
supposed to exist in the memories of all; but, for certainty of recol- 
lection, reference is had, either to a copy from the legislative rolls, or 
to the book printed by public authority. 1st Greenleaf, 479. 

Private writings must be proved by the subscribing witnesses, if 
there be any, or at least by one of them. But to this rule there are 



LAW OF MAGISTRATES. 205 

several exceptions. The first is, where the instrument is thirty years Deeas thirty 

1 1 • 1-1 • • • 1 • 1^ 1 1 •! • • years old. 

old; in which case, it is said to prove itseli, the subscribing witnesses 
being presumed to be dead, and other proof being presumed to be 
beyond the reach of the party. But such documents must be free 
from just grounds of suspicion, and must come from the proper cus- 
tody, or have been acted upon, so as to afford some corroboratiA^e proof 
of their, genuineness, and in this case it is not necessary to call the 
subscribing witnesses, though they be living. 1st Greenleaf, 570. 

A second exception to this rule is allowed, where the instrument isproducedby 
produced by the adverse party, pursuant to notice, the party producing party. 
it claiming an interest under the instrument. In this case, the party 
producing the instrument is not permitted to call on the other for proof 
of its execution; for, by claiming an interest under the instrument, he 
has admitted its execution. Ibid, 571. 

If the witnesses to a will deny their attestation, or fail to prove the where 

111 witnesses 

execution, circumstantial evidence may be adduced, and the most deny, or fail 
direct and usual, is, proof of their hand-writing; but such proof ought 
to be very clear. Pearson and others vs. Wightman, 1st M. C, 336. 

If the subscribing witness to a note, on being sworn, should not 
prove it, it may be proved by other evidence. Vernon vs. Hammet; 
1st Hill, 269. 

Where the subscribing witness to a bond or note, cannot be produ- By proving 

° _ _ hand-writing 

ced, his hand- writing must be proved before plaintiff can prove the of witnesses. 
hand-writing of the obligor or maker of a note, notwithstanding the 
Act of 1802 allows the plaintiff to prove bonds or notes by other 
persons than the subscribing witnesses. Taylor. ads. Meyers; 2d 
Bay, 506. 

Where all the witnesses to a will, in order to pass lands, are dead, 
or out of the State, the hand-writings or signatures of all the three 
witnesses to its execution should be proved. Hopkins vs. Albertson; 
2d Bay, 484. 

Where the maker of a promissory note had made his mark to it, 
and the subscribing witness was out of the State, proof of the hand- 
writing of the subscribing witness was held sufficient. Bussey ads. 
^Whitaker; 2d N. & Mc, 374. 

The absence of a Avitness to. any bond or note, shall not be deemed pfo^fof 
a good cause, by any Court of Justice, for postponing a trial respecting ,ife"party. °^ 
the same; but that the signature to such bond or note may be proved 
by other testimony; unless the defendant, at the time of filing his or 
her plea, shall swear, or affirm, according to the form of his religious 
profession, that the signature of the bond or note in suit is not his or 



20G 



LAW OF MAGISTRATES. 



Comparison 
admissible. 



In cases of 
doubt. 



In ancient 
writings. 



Inadmissible, 
generally. 



Admissible 
to prove a 
subsequent 
contract. 



hers; nor in case the defendant or defendants should be executors or 
administrators, shall the cause be postponed for want of the subscribing 
witness to the bond or note in suit, but the signature may be proven 
by other testimony; unless one of the executors or administrators, 
who are defendants, shall swear, or affirm, as aforesaid, at the time of 
filing his or her plea, that they have cause to believe the signature to 
such bond or note is not the testator's, or intestate's, as the case may 
be. 5th S. L., 435. 

It is sufficient proof of a defendant's signature, if a witness swear 
that he has seen defendant write, and that he believes it to be his 
hand-writing. Coram, of the Poor vs. Hanion; 1st N. & Mc, 554. 

So also hand-writing may be proved by one who has seen letters or 
other documents of the party, and has personally communicated with 
him respecting them, or acted upon them as his, the party having 
known and acquiesced in such acts. 1st Greenleaf, sec. 577. 

As a circumstance in aid of doubtful proof, comparison of hand- 
writing is admissible, hut per se is inadmissible. Adm. of Bomanvs. 
Plunkett; 2d McC, 518. 

Where there is conflicting testimony as to the genuineness of a sig- 
nature, comparison of hand -writing is admissible, a^ confirmatory 
evidence, to enable the jury to decide upon which of the witnesses 
they could most confide. A bundle of notes that is admitted Jo prove 
the genuineness of a signature, by comparison of hand-writing, may 
be sent to the jury. Robertson <St Co. vs. Millar; 1st McMullan, 120. 

When a writing is offered in evidence, so antiquated as to render it 
difficult ifnot impossible to produce a witness who had ever seen the 
person write, whose signature is in question, a comparison of hand- 
writing is allowable. Cantey vs. Piatt; 2d McC, 260. 

How far a written instrument may be explained or varied by parol 

evidence. 

" Parol contemporaneous evidence is inadmissible to contradict or 
vary the terms of a valid Avritten instrument." 1st Greenleaf, sec. 
275. So also, if a person make a verbal agreement, and afterwards 
enter into a written contract upon the same subject, the verbal agree- 
ment is merged in the written contract, and parol evidence cannot be 
admitted to prove any contract different from the written agreement. 
Falconer vs. Garrison; 1st McC, 209.- 

A written agreement may be waived, and the terms of it varied, by a 
subsequeiit parol agreement — such parol agreement is not a contra- 
diction of the original contract, nor an alteration of it, but a new sub- 
sequent contract. 1st Rice; Tit. Evi., 158. 



LAW OF MAGISTRATES. 207 

Parol evidence is admissible to shew, that the time, specified ia a 
written agreement for the delivery of goods sold, was subsequently 
enlarged by the parties : so, where no time was fixed by the written 
agreement, evidence was received to shew, that it was afterwards 
fixed by parol. Neil vs. Cheves, 1st Bailey, 537. 

It may be shewn by parol, that after a submission in writing, the 
parties agreed that the arbitrators should have power to call in an 
umpire; such an agreement is a new and indep'endent contract, and 
not a variance of the written submission. 

A submission, in writing, to abide by the award "of the arbitrators 
now about to sit," may be shewn by parol, to have been intended at 
the time as a submission to certain individuals as arbitrators, with 
power to call in an umpire. It is rendering certain by parol, that, 
which the parties did not intend to make certain by the writing. Sharp 
vs. Lipsey; 2d Bailey, 113. 

Parol evidence is inadmissible to vary, or contradict, a written jyjjgt^ife 
agreement, entered into upon an adjustment of accounts between the 
parties. If evidence were offered of a mistake in the settlement, it 
would be admissible, even in an action upon a sealed note given for 
the balance. Boyce vs. Foster; 1st Bailey, .540. 

A party cannot at law, by parol testimony, shew a different consi- 
deration from the one expressed in a deed; but it may be admitted, tioE. 
it seems, to shew a greater or less of the same character. Garrett 
vs. Stuart, 1st McC., .514. 

Parol evidence is admissible to shew that the true consideration for 
the purchase of a tract of land was greater than that specified in the 
deed. Curry vs. Lyles; 2d Hill, 404. 

If the language of the instrument is applicable to several persons, g,j„oundi„g 
to several parcels of land, to several species of goods, to several monu- ^'jcumstan- 
ments or boundaries, to several writings; or the terms be vague and 
general, or have divers meanings, as, "household furniture," "stock," 
"freight," "factory prices," and the like; or in a will, the words, 
"child," "children," "grand-children," "son," or "nearest relations," 
are employed; in all these and the like cases, parol evidence is ad- 
missible of any extrinsic circumstances, tending to show what person 
or persons, or what things, were intended by the party, or to ascer- 
tain his meaning in any other respect. 1st Greenleaf, sec. 288. 

In regard to receipts, it is to be noted, that they may be either 

° "^ ' ' ■' •' Receipts. 

mere acknowledgements of payment or deliverj^ or, they may also 
contain a contract to do something in relation to the thing delivered. 
In the former case, and so far as the receipt goes only to acknowledge 



•208 LAW OF MAGISTRATES. 

payment or delivery, it is merely prinia facie evidence of the fact, and 
not conclusive; and therefore the fact, which it recites, may be con- 
Iradicted by oral testimony. But in so far as it is evidence of a con- 
tract between the parties, it stands on the footing of all other contracts 
in writing, and cannot be contradicted or varied by parol. Ibid, 66c. 
305. 



EXAMINATION. 



Not neces 
sary. 



Of prisoner. Formerly by statute 2 and 3 P. & M., c. 10, the magistrate before 
whom a prisoner is brought, was boucd immediately to examine the 
circumstances of the crime alledged, and to this end he is to take in 
writing the examination of such prisoner, and the information of those 
who bring him. 

But by the Act of Assembly of 1839, p. 15, sec. 10; "it shall not 
be necessary for any magistrate, when any prisoner is produced before 
him for commitment or bail, on a charge of felony, to examine such 
prisoner, and those who bring him as heretofore prescribed. by law: 
such magistrate may take the examination of any witness in behalf of 
the State, in the presence of such prisoner, allowing such prisoner the 
right of cross examination, and reduce the testimony so taken to 
writing, read the same over to the witness, and require him to sub- 
scribe it; and the magistrate shall return the testimony thus taken to 
the office of the clerk." 



1st. The Examination of the Prisoner. 

2d. The Exajiination of the Witnesses. 

3d. Of the Co3oiit3ient pending such Examination, and 

FINAL proceeding. 



Not on oath, 



1st. The Examination of the Prisoner. 

Though by the Act of 1839, it is no longer obligatory on the magis- 
trate to examine the prisoner, yet it were better that this ancient and 
established course be pursued, as the bearing of what the prisoner may 
say for or against himself, will probably furnish useful information 
in the investigation of the case. 

He must not be examined on oath, for this would be a species of 
duress, and a violation of the rule, that no one is bound to criminate 



LAW OF MAGISTRATES. 209 

himself. And where such examination purpons upon its face to have 
been taken on oath, it will be rejected; nor will parol evidence 
be admissible to prove that no oath had in fact been administered. 
2 Starkie, Evi. p. 30. 

It is not absolutely incumbent on the magistrate to warn the Not bound 

r Ti-i-r> • 11' '<5 warn. 

prisoner not to confess, ibid. But as it must appear that his state- 
ment was not made under the influence of fear or hope of favour, in 
order to be admissible, trom motives of caution, it is usual for the 
magistrate to warn the prisoner that his statement maybe read against 
him, and that he is not bound to answer unless of his own free choice. 

The examination should be taken down in wrifi:;g, for so the sta-To betaken 
tute directs, and though ii has been held that the substance thereof'" ^"''"^* 
maybe proved by parol, if not reduced to writing, yet as the presump- 
tion of law is, that the magistrate did his duty, it will always be 
presumed that the statement of the prisoner was taken as the statute 
directs, until the contrary is made to appear. 

All that the prisoner states, should be taken as nearly as possible ^vhoie state- 
in his own words ; for though the statute merely requires that which ™^"'* 
is material to be taken down, or so much as goes to make out the 
felony, yet the magistrate may not know at the time how slight a 
matter may prove material, and justice requires that the prisoner's 
statement should not be garbled. 

The writing should be signed by the prisoner and the magistrate, signing of 
and if the prisoner refuse to sign, yet if he acknowledge it as correct, 
it may still be evidence against him. 

'2.3,. Examination of Witnesses. 

It was evidently the intent of the Act of 1839, that the examination jjy,gg u^^gr 
cf witnesses, directed by that sta'ute, is to perpetuate the testimony *'^^ °'^*" 
thus taken, so that in the case of the death of a witness before the 
trial, his testimony may not be lost. It is important, that the exami- 
nation shall plainly appear to be taken according to the directions of 
the act, namely, 

1st. It should be taken in the presence of the prisoner. 

2d. He should be allowed the right of cross-examination. 

3d. It should be reduced to writing, read over to the witness, and 
subscribed by him. 

It seeraeth just and right, that the justices who take information 
against a felon, or person suspected of felony, should also take and 
certify such evidence as goeth to the acquittal of the prisoner. Dalt., 
c. 165. . 

27 



LAW OF MAGISTRATES. 

3d. Of commit7nent pending such examination, and final proceeding. 

ef ^y If, by some reasonable occasion, the magistrate cannot, at the 
return of the \varrant, take the examination, he may, by word of 
mouth, command the constable or other person to detain the prisoner 
in custody till the next day, and there to bring him before him For 
further examination. And this detainer is justifiable by the constable 
or other person, without shewing the particular cause for which he 
was to be examined, or any warrant in writing. 1 K. H., 585. 

iabie But the time of the detainer is no longer than is rtcessary for such 
purpose, for which it is said that the space of three days is a reasona- 
ble time. 2 Haw., 119. 

After examination, the magistrates may bail, if thfi offence be bail- 
able, or he may commit; and whatever doubts there may have been, 
formerly, as to his right to discharge, it is now settled by Act of 1839, 
p. 15, sec. 6, that if it clearly appear upon examination, that the 
charge is not founded in probability, the party may bb discharged. 

Precedents. 

Examination of the Prisoner, 

State of Sou'' h-Cakolina, > 
District. ^ 

The examination of A. B., of district, in the said State, taken 

before me, C. D., magistrate for the said district, on the day 

of in the year He, the taid having been brought 

before me, charged with and being first warned that 

he is not bound to criminate himself, and that he is to expect no fa- 
vour therefrom; nevertheless upon his examination, now taken before 
says, (here follow the words of the prisoner.) 

A.B. 
Taken and subscribed before > 
me, the date as above. ^ 

CD., 

Magistrate. 

Examination of Witnesses. 

State of South Carolina , 
District. 

E. F., a witness on behalf of the State, being duly sworn and ex- 



LAW OF MAGISTRATES. 211 

amined in the presence of A. B., and cross-examined by him, deposes 
and says, (here state the testimony in full.) 



Swiorn to and subscribed, after being read 
to the witness, before me, this day of 
CD., 

Magistrate. 



E, F. 



EXECUTION. 

1st. In Civil Cases. 
• 2d. In Criminal Cases. 

1st. In Civil Cases. 

By Act of 1839, p. 18, sec. 15; if a demand, or any part thereof, To be issued 
be sustained on trial befo -3 a magistrate, he shall give judgement ment.'' 
therefor, together with the costs, and having entered the same in his 
book, may issue his execution for such amount so adjudged, directed 
to any constable of the said State, by virtue of which the same may be 
levied of the goods and chattels of such defendant in execution liable 
therefor, wheresoever the same may be found within the State, at any 
time within one year from the date thereof, and not afi;orward ; (now 
extended to four years. Act 1847, 433;) and in case the said execu- 
tion be returned not satisfied, with the cause thereof, to the same or 
nearest magistrate, on the oath of the proper officer, such magistrate 
may, at any time vpithin four years, and on giving five days notice to 
the defendant, issue an alias, and in like manner ^ pluries execution, 
on being satisfied that the same is yci due. 

Execution may issue immediately after iudffement, unless notice ofwhenexe- 

. . ,. . . , , cutionmay 

appeal be given, in which case the party appealing, is entitled to two issue. 
days to give bond and security. 

Execution may be sued out upon a judgement in a Magistrate's 
Court, at any time within a year and a day, and a new action cannot 
be brought out within that period. Lee vs. Giles, 1 Bail., 449. 

A magistrate s execution has no lien until it is levied, and therefore £„ nen. 
a levy and sale under a magistrate's execution will not divest the 
lien of an execution from a Court of record. Robinson vs. Cooper, 
1 Hill, 286. 

Also, in the case of Kerr vs. Montgomery, 1 Hill, 277, it was held. 



212 LAW OF MAGISTRATES. 

that a sale under a magistrate's execution, of property bound by exe- 
cutions in the sheriff's office, confers no title. 

i^vyand In every case where an execution or attachment is levied, the 

constable shall specity by indorsement on the execution or attachment, 
or by schedule thereto annexed, a list of every article so levied on, 
and forthwith lodge a copy of such list with the person issuing the 
process under which he acts; and in all cases of sale by a constable, 
he shall give ten days notice, by advertisement, at two of the most 
public places in the neighborhood, of the time and places of sale. 
Act 1339, p. 56, sec. 5. 

By sec. 12, same Act; no constable shall levy any execution upon 
a slave, provided he can find other personalty liable to levy and sale, 
sufficient to satisfy the demand. 

Articles By Act of Congress of Sth Mav. 1792, the arms and accoutremeats 

exempt from . . ' .- i i , i i i 

ie%T. of a militiaman, viz: a musket or nrelock, bayonet and belt, two 

spare flints, a knapsack, pouch and box, are exempted from all suits, 
distress, executions or sales, for debt or the payment of taxes. 

By Act of Assembly, 1794, 8 S. L,, 489, the horse cf a trooper, 
his arms and accoutrements, are exempt from seizure. But to exempt 
said horse under the statuce. he must be registered with ihe captain of 
the company. 

Other articles exempt fror.: execution are, to each family, two beds, 
with necessary bedding; two bedsteads; one spinning wheel, and two 
pair of cards; one loom and one cow and calf; if a farm'' r, the necessary 
farming tools; if a mechanic, the tools of his trade; the ordinary cook- 
ing utensils, and 810 worth of provisions. 6th S. L., 214. 

A magistrate may in no case issue execution against the body. 
Cheves, R. 

Form of an Execution. 
State or South-Carolixa, ? 
District. ^ 
By A. B., Magistrate in and for the said State. 

To any lawful Constable. • 

You are hereby commanded, that without delay, of the goods and 
chattels of C. D., you levy the sum of dollars, cents, which 

E. F. before me did recover for a debt, also costs. 

Given under my hand and seal, the d^y of A. D., one 

thousand eight hundred and 

Statement: A. B. [l. s.] 

Debt, $ 
. Costs, 



LAW OF MAGISTRATES. 213 

2d, In Criminal Cases. 

All and every constable and constables in the several parishes of constable 
this State, where any slave be sentenced to suffer death or other pun- ^'*^" ***^'="'^ 
ishment, shall cause execution to be done of all the orders, warrants, 
precepts and judgements of the justices appointed to trj such slaves. 
And that no delay may happen in causing execution to be done, the 
constable is authorized to press one or more slave or slaves in or near 
the place where such punishment is to be inflicted, and such slave orp ^g^,^ 
slaves, so pressed, shall be obedient to and observe all the orders ofP^^?|j^,j^jg 
the constable, in and about the premises, upon pain of being punished 
by the said constable, by whipping on the bare back, not exceeding 
twenty lashes, which punishment, the said constable is hereby autho- 
rized and empowered to inflict. And the constable shall, if he press 
a negro, pay him five shillings out of his fee, for doing said execution. 
A. A., 1740; 7th S. L., 404. 

On the conviction of a slave, for any oflTence not capital, the punish- 
ment shall be whipping, confinement in the stocks, or tread mill, and 
not otherwise; and on conviction of a free person of colour, for a like Kind of 

* . execution. 

offence, the punishment shall be whipping, confinement in the stocks, 
tread mill, or prison, or fine, and not otherwise; and on conviction of 
a slave, or free person of colour, for a capital ofl^ence, the punishment 
shall be hanging, and not otherwise. 6th S. L., 489. 

When any slave or free person of colour shall be sentenced to 
death, sufficient time shall be allowed to permit an appeal to be made. Time aiiow- 
as is provided in the third section of the act, entitled, "An Act to or apply for* 
abolish certain punishments, and amending the law for the trial of 
slaves and free persons ofcolor," passed in December, 1833; and such 
report of the case shall be made by the magistrate as is therein pre- 
scribed; and in all cases, a sufficient time shall be allowed to apply to 
the Governor for a pardon. A. A,, 1839, p. 23, sec. 28. 

It is clear, that if upon a judgement to be hanged by the neck until 
he is dead, the criminal be not thoroughly killed, but revives, he must if he revive, 

. , must be 

be hanged again, for the former hanging was no execution of the sen- iianged 
tence, and if a false tenderness were to be indulged in, in such cases, 
a number of collusions might ensue. Nay, even while abjurations 
were in force, a criminal, so reviving, was not even allowed to take 
sanctuary and abjure the realm, but his fleeing to a sanctuary, was 
held an escape in the officer. 4 B. C, 406. 

If a woman, quick with child, be condemned either for treason or^^^an 
felony, she may allege her being with child in order to get the execu- ^hjf(f "'"'' 
tion respited, and therefore the oflicer shall be commanded to take her "spited. 



214 LAW OF MAGISTRATES. 

into a private room, and impannel a jury of matrons to try and examine 

whether she be quick with child or not, and if they find her quiclv with 

child, the sentence shall be respited until her delivery. But a woman 

cannot demand such respite of execution by reason of her being quick 

with child more than once. It also seems that she shall have no 

advantage from being found with child, unless she be found quick with 

child. 2 Haw., 463, 464. 

Where a Another reason of regular reprieve, is, where a person becomes 

becomes insano between the judgement and the award of execution. For 

"sane. regul;: sly, though a man be compos when he commits a crime, yet if 

he be come non-compos after it, he shall not be indicted; if after 

indictment, he shall not be convicted; if after conviction, he shall 

not receive judgement; if after judgement, he shall not be ordered for 

execution. 1st Tomlins; Title Execution. 

Where time If the day appointed for execution should elapse before execution 

passes. done, a new time maylie appointed. This new time may be appointed 

by the Court which tried the offender, or by the King's Bench; (here by 

the Sessions.) 1 Tomlins, 715. 

Warrant of Execution. 

State of South-Carolina, > 
District. ^ 

Whereas, A. , slave of , (or free person of color) before 

me, (C. D.,) presiding magistrate, and freeholders, was convicted 

of and sentenced to be kept in close confinement until the 

day of , and then between the hours of of the said day, to be 
hanged by the neck until be dead. 

To any lawful Constable. 
You are hereby authorized and required to keep the body of the said 
in close confinement until the day of , and between 

the hours of and of the said day, to cause the said to be 

hanged by the neck until he be dead. 

.Given under my hand and seal, this day of , in the year of 

our Lord, one thousand eight hundred and 

C. D., [l. $.] 

Magistrate. 



LAW OF MAGISTRATES. 215 

EXPOSING THE PERSON. 

Exposing the person to public view, or with intent to insult a 
female, is an indictable offence, for which the party may be punished by 
fine and imprisonment. 2 Camp., 89; 2 Stra., 789; i Sid., 168. 



EXTORTION. 

Ist. What is. 

2d. Its Punishment. 

1st. What is Extortion. 

Extortion, says Lord Coke, signifies any oppression by colour or (jg^^^j^jiy^ 
pretence of right; and in this respect it is said to be more heinous 
than robbery itself. To this may be referred the exaction of unlawful 
usury, winning by unlawful games, and in a word, ail taking of more 
than is due by colour or pretence of right; as excessive toll in millers, 
excessive prices of ale, bread, victuals, wares, <S^c. 

But in a strict sense, it signifies the taking of money by an officer, in a strict 
by colour of his office, either where none is due, or not so much is duei 
or where it is not yet due. 2 Burn., J., 134. 

It is generally agreed, that no public officer shall fake any other General rule, 
fees or rev/ards, for doing any thing relating to his office, than some 
statute in force gives him, or has been anciently and usually taken; 
and if he do otherwise, he is guilty of extortion. Dalt., c. 41. 

Tt seems that an officer who takes a reward that is voluntarily given '^^^^^g^ 
him, and which has been usual in certain cases, for the more diligent "reward, 
or expeditious performance of his duty, cannot be said to be guilty of 
extortion. 2 Inst., 210. 

But a promise to pay such reward, however freely and voluntarily 
made, is void. 1 Haw., 171. 

2d. Its Punishment. 

At the Common Law, this offence is severely punishable, at the 
suit of the State, by fine and imprisonment, and also by a re > oval 
from the office, in the execution whereof it was committed. 

If any person entitled to fees by this act, and in the lists therein 
mentioned, shall take or receive any further, other or greater fee or 
reward, for any of the services therein mentioned, or shall invent or 



216 LAW OF MAGISTRATES. 

contrive any other or further fee or reward for any of the said servi- 
ces; in every such case the person so offending shall, on conviction, 
forfeit for the first offeiice, four times the amount cf the sum so taken, 
paid or receivod, to be recovered in any Court of record; one half to 
the person sue'ng for the same, and the other to the public treasury 
for the State; - vcept where County Courts are established, when the 
said lastmentic ed moiety shall be for the use of the county: and for 
the second offence, shall be divested of his office, and be rendered 
incapable of reappointment to the same And on information from 
the Court, under hand and seal, the Governor shall fill up the vacancy, 
if the Legislature should not be sitting; and if in the County Courts, 
the vacancies shall be filled up by the justices of the said county. 
Sec. 3, of A. A., 14th Pebruary, 1791. 
Penalty % ^^* ^^ 1^^^' ^^^^ ^- ^•- ^^^5 If any officer therein named shall 

"nssT^'^'d "^^il^i^'b' ^^ ignorantly charge any other or higher fees than those 
1839. therein recited, such officer shall be liable to forfeit to the party injured, 

ten times the amount of the excess of fees so improperly charged, to 
be recovered by suit in the Court of Common Pleas, in which no 
imparlance shall be granted; and by Act of 1839, p. 11, any officer 
named therein, who shall charge any other fees, or for any other ser- 
vices than those therein recited, shall forfeit as above provided, to 
be recovered in the same manner, or by rule, when the penalty does 
not exceed twenty dollars. 



EYE, PUTTING OUT. 
[See Mayhem.] 



FALSE IMPRISONMENT. 

Is an assault. ^^ unlawful imprisonment is an assault, for it is a wrong done to 
the person of a man, for which, besides the private satisfaction given 
to the individual by action, the law also demands public vengeance, as 
it is a breach of the peace. 

What To constitute the injury of false imprisonment, there must be an 

amounts to . • i \ n 

anuniawfui unlawful detention of the person, either by confinement in a common 

impiison- 

ment. prison, m a private house, or by forceable detention in the streets. 



LAW OF MAGISTRATES. 217 

And the detention will be unlawful, though the party have a regular 
process, if it be executed at an unlawful time, as on Sunday. 1 Rus- 
sel, 607. 



FEES. 

1st. Amount of Fees. 

2d. By whom paid. 

3d. Charges against the State, how recovered. 

1st. Of Magistrates. 

Oath and warrant in criminal cases, - - - $00 43 Amount of 

Each recognizance "nd return, ..... 43 

Commitment, -....-.- 21 

Administering and certifying oath in writing, - . 32 

Habeas Corpus, to each magistrate, .... 75 

Issuing summons and copy to the defendant, . . 37j 

Summons for witness, ...... 21 

Taking examination of a witness in writing, in any case as 

prescribed by law, -..-.. 50 
Giving judgement on hearing litigated case, - - 25 
Do. do. in case not defended, ... 18 
Issuing execution or renewal, . . - - . 25 
Report of case, and taking bond to appeal, ... 62^ 
Issuing attachment, returnable to Court or magistrate, in- 
cluding all notices, . . . . . * - 1 00 

Filing return of garnishee, and order thereon, . - 12^ 
Proceedings between landlord and tenant, to the two magis- 
trates jointly, . - - . ■ . . - 10 00 
Proceedings in forcible entry and detainer, . - 10 00 
Proceedings against vagrants, and report, - - . 2 00 
Certifying indenture of apprentice, or assignment, - 1 00 
Trial of slaves or free persons of color, including all char- 
ges, in capital cases, . - - ■ . 2 00 

Not capital, 1 00 

Coroner's inquest, ..----. 8 50 
Mileage on same, (if over five miles,) going and returning, 

per mile, ...-..- 5 

Each warrant issued, 50 

28 



218 LAW OF MAGISTRATES. 

Each commitment, $00 50 

Each recognizance, ...... 75 

Each body disinterred, 3 00 

Recording proceedings in his book, per copy sheet of ninety 

words, ........ 12 

Proceedings on estray of horse or mule, ... 50 

Other estray, 12^ 

Taking and certifying renunciation of dower or inheritance, 2 00 
Granting order for special bail, ..... 50 

Hearing and determining application under prison bounds act, 2 00 
Patrol warrant, ........ 43 

Distress warrant, -.-...- 43 

Provided that nothing herein contained, shall authorize or empower 
any magistrate to receive any fee whatsoever for his services, in any 
proceeding in causes small and mean, where the amount for which 
the summons «hall be issued, shall be one dollar and fifty cents, or 
under. A. A., 1840, p. 105. 

That nothing in this Act shall be construed to alter, abrogate, or 
interfere with the practice or fees, as now established by law for the 
magistrates of the parishes of St. Philip's and St. Michael's. Provi- 
ded, that the fees to be charged to the State, be uniform through- 
out the State. Ibid, p. 106. 

The fees of magistrates in St. Philip's and St. Michael's, therefore, 
remain as provided by the Act of 18.33 and 1839, p. 23, and are as 
follows : 

PWMp" and Oath and warrant in criminal case, .... $00 50 

Ji,ach recogiyzance, - 50 

Commitment, -. - - - - -. 50 

Administering and certifying oath in writing, - . Zl^ 

Writ of habeas corpus to each magistrate, ... 75 

Summons to defendant in civil case, .... 50 

Summons to witness, ...... 25 

Taking examination of witness in writing, in any case as 

provided, ....... 50 

Giving judgement in litigated case, .... 50 

Not litigated, ' - . 25 

Issuing execution or renewal, ... - - 25 

Report of case, and taking bond to appeal, - - - 1 00 
Issuing attachment returnable to magistrate, including all 

notices, - 1 00 

The same, returnable to Court, - - - - 2 00 



LAW OF MAC^ISTRATES. 219 

Filing return of garnishee and order, . - . - 
Proceedings between landlord and tenant, - . . 
Against vagrant, and returning report, .... 

Certifying indenture of apprentice, or assignment, 

Trial of slaves and free negroes, in capital case. 

Not capital, -.-.-... 

Coroner's inquest, same as above. 

Estray of horse or mule, proceedings, - . . - 

All other estrays, ....... 

Dower or inheritance, taking and certifying renunciation of. 
Special bail, order for, ...... 

Prison bounds, hearing and determining application for, 

Constables Fees. 

Summoning jury in case of landlord and tenant, 

" Coroner's jury, and witnesses, ... 
Serving a summons, rule or notice, by a magistrate, in a 

civil case, (no mileage), ..... 
Serving attachment, inventory and return, 
Besides commission on sale, 5 per cent. 
Hanging slave or free negro, ..... 

Whipping, or other corporal punishment, ... 
Estray, selling, 5 per cent. 
Execution, levy, advertisement, and paying over proceeds, 

(besides 5 per cent,) ..... 
Each day engaged on search warrant, . . - . 
Warrant in any State case, . - - - . 

Commissions on all sums levied, 5 per cent. 

Summoning witness in civil case, .... 21 
Summoning juror and witness on trial of slaves or free per- 
son of colour, 21 

2d. By whom payable. 

In civil cases, by summons or distress, proceedings between land-incivu 
lord and tenant, in forcible entry and detainer, the unsuccessful 
party is liable for the fees; but incase the decree, or verdict, be 
against the defendant, and he be unable to pay, then the pkiintifF 
becomes liable to pay the same. 6th S. L., 486. A. A., 1839, pp. 
18 and 57. 

In criminal cases, except in case of slaves, the fees of magistrates in criminal 
and constables must be paid by defendant, if found guilty. If not '^^^^^ 



$00 


25 


10 


00 


2 


00 


2 


00 


4 


00 


2 


00 


1 


00 




50 


2 


00 


1 


00 


2 


00 


$10 GO 


2 


14 




50 


1 


00 


5 


00 




75 




21 


1 


00 


1 


00 



LAW OF MAGISTRATES. 

guilty, or the proceeding be stopped at the instance ofthe State, or the 
grand jury find no bill, or the attorney not. pros, , or the defendant be 
unable to pay, then if the said costs have not been paid by the prose- 
cutor, they will be paid by the State. 6th S. L., 387. A. A. , 
1840, p. 106. 

The fees for the prosecution of slaves, are in all cases to be charged 
to the State, except in case of search warrant, to be paid by the party 
complaining; Act 1840, 106. And in the parishes of St. Philip's and 
St. Michael's, where the Court shall think the prosecution groundless 
and malicious, it may order the prosecutor, if able, to pay the costs. 
Zd. Charges against the State, how recovered. 

By resolution of the Legislature, Resolved, That in future all ac- 
counts exhibited against this State shall have every charge therein 
clearly defined, and shall be presented on or before the first day of 
November next; and also on or before the firstdayofNovember in every 
succeeding year, to the treasurers, either at Columbia or at Charles- 
ton, whose duty it shall be to audit the same, make their remarks on 
each, and lay them before the legislature, on the first day of their 
next meeting thereafter. 

Resolved, That in future, all accounts exhibited against this State, 
shall be certified by such officers only as are known in law, and who 
directed the respective duties and services to be performed for the 
public ; and said accounts shall also be attested, which attestation 
shall be subscribed to by the parties making the demands, and to be 
as follows : 

District. > 

Personally appeared [the party's name^ before me, [the magistrate's 
namel who after being duly sworn upon the Holy Evangelists of 
Almighty God (or affirm, as the case may be) and saith, that the above 
(or within) account of dollars and cents, is truly and justly 

due him from the State of South-Carolina, and that he has never re- 
ceived any part thereof, either by discount or otherwise, directly or 
indirectly. Witness my hand, 

A. B. 

Sworn before me, this day of 

C. D., Justice ofthe Peace. 

Resolved, That in future, all accounts against this State, that are 
not delivered in, and authenticated in the manner prescribed by the 
above resolutions, shall not be provided for in the tax-bill of that year. 
Grimke, p. 501. 



LAW OF MAGISTRATES. 221 

By the Act of 1829, 6th S. L., 387; The oath of the magistrate 
within the Parishes of St. Philip's and St. Michaels, as to the services 
rendered, and as to his belief of the inability of the prosecutor, or 
party liable for costs, to pay them, accompanied by the certificate of 
the clerk of the Court, where the proceeding have been returned into 
Court; and in the case of the constable, his oath and the certificate of 
the magistrate and clerk of the Court, shall be sufficient to entitle the 
parties to payment from the Legislature. 



FELONY. 

[For proceeding in, and punishment of ; see Murder, Burglary, 
Larceny, &c.] 

The term felony has been long used to denote the class of crime Definition, 
committed, rather than the forfeiture occasioned by the crime, accord, 
ing to its original signification. ProperJy, it is an offence which occa- 
sions a total forfeiture of lands, or goods, or both, at the Common Law, 
and to which capital or other punishment may be superadded, accord- 
ing to the degree of guilt. Capital punishment does, by no means, 
enter into the true definition of felony, -but the idea of felony is so 
generally connected with capital punishment, that it is hard to sepa- 
rate them, and to this usage the interpretations of the law have long 
confoi'med. Therefore, if a statute make a new offence felony, the 
law implies that it shall be punished with death, unless the offender 
prays benefit of clergy, to which all felons are entitled once, unless it 
be expressly taken away by statute. 1st Russel, 42. 

With regard to felonies, created by statute, it seems clear that not vvhat wonia 
only those crimes which are made felonies in express words, but also creafe'a"'^ 
those which are decreed to have or undergo judgement of life and '^^'°"^" 
member by any statute, become felonies thereby, whether the word 
felony be omitted or mentioned. And where a statute declares, that 
the offender shall, under the particular circumstances, be deemed 
feloniously to have committed the act, it makes the offence a felony, 
and imposes all the common and ordinary consequences attending a 
felony. Ibid. 

If a felony be committed, and the felon fly from justice, or a dan- 
gerous wound be given, it is the duty of every man to use his best 



222 LAW OF MAGISTRATES. 

endeavors to prevent an escape, and in such- cases, if fresh suit bo 
Authority of made, and if hue and cry be raised, all who join in aid of those who 
others 10 began the pursuit, will be under the same protection of the law; and 
' the same rule holds, if a felon, after arrest, break away, as he is being 
carried to jail, and his pursuers cannot retake him without killing him. 
Thus where, upon a robbery, committed by several, the party robbed 
raised hue and cry, and the country pursued, and on^ of the pursuers 
was killed by one of the robbers, it was held that this was murder, 
for the country, upon hue and cry levied, are authorized to pursue and 
arrest the malefactors; and that, although there was no warrant of a 
justice to raise hue and cry, and no constable in the pursuit, jet the 
hue and cry was a good warrant in law for the pursuer^ to apprehend 
the felons. 1st Russell, 502. 
Private But where private persons use their endeavors to bring felons to 

justice, some caution ought to be observed; in the first place, it should 
be ascertained that a felony has been committed, or actually attempted 
by the party arrested; for no suspicion, however well founded, will 
bring the person endeavoring to arrest, without warrant, under the 
protection of the law; but a person detected in an attempt to commit a 
felony, may be detained without warrant, until he can be carried 
before a magistrate. — lb. See also, Compounding and Misprision. 



persons. 



FEME. 

[See Women.] 



FENCES. 

What a -^1' fences strongly and closely made of rails, boards, or posts and 

lawful fence. j.j^ J jg^ or of an embankment of earth, capped with rails or timber of 

any sort, jr live hedges, five feet in height, measured from the level 

or stirface of the earth, shall be deemed a lawful fence, oth S. L., 331. 

Navigable Every planter shall be bound to keep such lawful fence around his 

stream , , • i i i 

deemed cultivated grouuds, except where some navigable siieam or deep water 

course shall be the bciuidary of such cultivated grounds, in which 

Proviso. case, such stream shall be deemed a sufficient fence. Provided, that 



LAW OF MAGISTRATES. 223 

before one can avail himself of this act, he shall apply to a magistrate 
of the district or parish, who shall from the names of seven freeholders 
of the vicinage, drav^^ by lot three, who are required to view^ the pre- 
mises, and pronounce upon the sufficiency of the said water as an 
enclosure, according to the true intent of this act. — Ibid. 

If any horses, mules, cattle, hogs, sheep, or goats, shall break intOjj^^g^g ^^ 
any field, enclosed according to the directions of this act, having s-J^^^ay'^be^"'' 
crop of any growing or ungathered grain, they may be seized and kept*"^®^- 
confined until notice is given, wiihin twenty-four hours after seizure, to 
their owner, his agrent, or overseer, who shall be bound to pay the 

' ° ' ' "^ •' Penalty. 

owner of said field fifty cents per head for each horse or mule, and 
twenty-five cents per head for every head of cattle, hogs, dec, before 
he shall be entitled to have such animal delivered up to him. — lb., 332. 

For the second breaking of the fields of the same person, by the 
horses, mules, &;c., of the same owner, within one month after the Second 
first, the owner shall be liable to the party injured for all damages 
sustained, in addition to the fine aforesaid, to be recovered by action 
of trespass, in which the plaintiff shall be entitled to full costs, if ver- 
dict or decree shall exceed four dollars. If it should appear that the 
fence was not a lawful one, the verdict shall be for the defendant. — lb. 

If any person whose fields are not enclosed by a lawful fence, shall penary fy^ 
kill, wound, maim, chase, worry, or in any manner injure any horses,J^J"'"^^s 
mules, cattle, hogs, sheep or goats, which shall be found in such fields, 
whether cultivated or not, or shall cause or procure the same to be 
done by any other person, whether a slave or a freeman, such person 
so offending, shall be liable to an action of trespass, and the plaintiff 
shall recover full satisfaction for the injury, with costs, if the verdict 
exceed four dollars. — Ibid. » 

If any slave shall hereafter kill, maim, wound, or injure any horse, pgj,j,,(^ 
mule, cattle, hog, sheep, or goat, not belonging to his owner, in any fj^g offence, 
cultivited or uncultivated field, not enclosed by a lawful fence, he or 
she shall be liable to be apprehended, and on conviction by a magis- 
trate and two (by Act 1839, changed to five) freeholders, shall be 
punished by whipping, not exceeding thirty-nine lashes Ibid. 



224 



LAW OF 3IAGISTRATES. 



FERRIES AND BRIDGES. 

Ist. How AND WHEBE BRIDGES A>'D FeREIES )IAY BE ESTABLISHED. 

2d. Of the Duties, Liabilities, axd Rights of the owxer 

OR keeper. 
3d. Rates of collecting Toll, and of persons exempt. 
4th. Fixes and Penalties, and how recovered. 



None to be 
e^tablisl)ed 
without six 
mouths 
notice. 



1st. How and ichere Established. • 
By Act of 1809, 9th S. L., 443, no road, bridge, or ferry, shall 
hereafter be established by law, unless the person or persons petition- 
ing for the same, shall have given notice to the Commissioners of 
Roads in the district or districts in which the said road, bridge, or 
ferry is to be established, at least six months before the sessioa of the 
Legislature, and shall bring to the Legislature a certificate of the 
same from the Board of Commissioners. 
Nor re- No ferry, the charter of which shall have expired, shall be rechar- 

wUtout three tered by the Legislature, unless the person or persons so applying, 
notice.^ shall advertise his intention of doing so, within three months previous 
to the meeting of the Legislature, to which such application shall be 
made, and at three of the most public places in the neighborhood of the 
said ferry. 9th S. L., 560. 

The right to establish ferries is an incident of sovereignty, and no 
individual has a right to establish one without permission of govern- 
ment, and the owner of one, thus established, is protected in his right, 
and if another set up a ferry near to his, without public authority, he 
may maintain an action on the case against him for a nuisance. 
Stark ads McGowen; 1 N. & Mc, 387. 

Also, the State may proceed by quo warranto, Blisset vs. Hart; 
Willes, 512. 

Whenever after 1827, a ferry may be chartered for a term of years, 
or in fee sir.-,ple, and the public interest may require a bridge to be 
besuppressed greeted thereat, and that the ferry should be suppressed, the Legisla- 
ture may erect the same, or grant a charter for that purpose, and sup- 
press the said ferry after the expiration of one year from the date of 
the act, declaring the suppression, on condition that the whole amount 
and one hundred per cent, advance, expended in making the road and 
landing to the said ferry, be paid to the proprietor. 
Lands may Whenever, by the authority of the State, any lands are required to 
valuation, be Surrendered by an individual, to an individual or company, for the 



The ri^ht to 
establi:^h in 
the Legis- 
lature," 



On what 

conditions 
ferries may 



LAV/ OF MAGISTRATES. 225 

construction of any bridge, turnpike, or other road, or keeping any 
ferry, and the same cannot, for the want of agreement of the parties 
as to price, or for any other cause, be purchased of the owner, ihe 
same may lie taken at a valuation. to be made by commissioners, or 
a majority of them, to be appointed by the Court of Common Pleas 
of the district where any part of the land may be situated. And the 
said commissioners, before they act, shall severally take an oath 
before some justice of the peace, faithfully and impartially, to dis- 
charge the ciufy assigned them. 6th S. L., 312. 

In making the said valuation, the said commissioners shall take into valuation 
consideration the loss or damage which may occur to the owner or "^""^ ^• 
owners, in consequence of the said land being taken, and also the 
benefit or advantages which he, she or they, may receive from the 
erection of said works, and shall state particularly the value and 
amount ot each, and the excess of loss "and damage over and above the 
benefit and advantage, together with the actual value of the soil taken, 
or to hn taken, shall form the measure of the valuation of the said 
land. — Ibid, 313. 

The proceedings of the said commissioners, accompanied by a full 

description and plat of the said land, shall be returned under the 

hands and seals of a majority of the said commissioners, to the Court 

from which the commission issaed, there to remain of record. — lb. 

• lil'case either party to the said proceedings shall appeal from the 

_ ^ I J I c r I ^ j^g^ valua- 

s^iQ^luation to the next session of the Court, ffrantinsj the commis- t'on. on 

appeal. 

sion, and give notice to the opposite parly thereof, the Court shall 
order a new valuation to be made b}- a jury, who shall be immediately 
charged therewith, and their verdict shall be final and conclusive 
between the parties, unless a new trial shall be granted by the Court 
of Appeals; and the land so valued by the commissioners or jury, shall 
vest ill the individual or company, in fee simple, so soon as the valua- 
tion thereof may be paid, or, when refused, may be tendered. — lb. 

Where there shall be an appeal from the valuation of commis- jj^^ ,„ 
sioners, entered by either of the parties, the same shall not prevent ^3°^^"^^'" 
the works intended to be constructed on the land, from proceeding; ^pp*"*'" 
but where the appeal I3 made by the party renuiriiig the surrender, 
he shall be at liberty to proceed in his work on the said land, only on 
condition that he shall have given to the opposite party, a bond, with 
good security, to be approved of by the clerk of the Court where the 
valuation is returned, in a penalty equal to double the said valuation, 
and interest, in case the same is sustained, or in case it is reversed, 
29 



226 , LAW OF MAGISTRATES. 

for the paymeiit of the valuation, to be made by the jury and confirmed 
by the Court. — lb. 
Distance The distance vvithiu which one ferry may not ti3 established in the 

ferrie™ viciiiity of another, dejends upon the charter of the ferry first esta- 
blished ; but if there be no protection in a charter fixing a precise 
distance, yot, at common law, "no one may erect a ferry on a river, 
so near an ancient ferry as to draw away its custom ;" and in the 
case of Stark ads M'Gowen, before referred to, it was held, that there 
was no difference between ancient ferries, and those by express grant. 
In all cases wheie a distance is fixed by charter, it is to be measured 
by water, or the approachable road. 9 S. L., 399. 
Legislature By Act of 1827, Cth S. L., 307, no rrrant of a bridge, ferry, or 
within any turnpike road, shall prevent the legislature from making further grants 

distance. ' ' . ' * . ° ^ 

01 bridges, ferries or turnpikes, within any distance of the same, 
whenever the convenience of the community may require such further 
grants. But every grant of a ferry, bridge or turnpike, shall exclude 
all other persons from erecting and kee\'ng up any bridge, ferry, or 
road, except for their own use, which may reduce the profits of such 
chartered bridge, ferry or turnpike, without the authority of the legis- 
lature expressed hy act. 

2d. Dulies and liabilities of owner and keeper. 

The owner of a feriy is obliged to make a sufficient ferry boat, 
with aprons attnched, oi an abutment or inclined plane at the landing 
place; (Ptli S. L., 544.) To keep employed a white ferryman; (3 S. 
L., 626.) 'J'o keep in good order the banks of th? river or creek; 
(9th S. L., 443.) To transport citizenc at all limes of the night or 
day; (9th S. L., 312.) To keep fixed np in some conspicuous place, 
their rates of toll; (Ibid, 396.) 

The owner of a bridge, which may be destroy rj by freshRt, is 
authorized to establish a ferry in lieu thereof^ provided the rebuilding 
of the said bridge be commenced in six months, and ccmpleted within 
two years from the time of its destruction. 9th S. 1.., 594. 

He is required to have a sufiicient railing, extending twenty feet 
i:i-, luijieto from the ends of his bridge, on each side of the road leading thereto; 
Ibid, 528 : and for not keeping his work in such condition as to 
answer the ends of its creation, is liable to indictment. 6th S. L., 
315. 
Liability. For neglect of any of his duties, the owner of a ferry is not only 

subject to the fines and penalties heic'nnfter specified, but is also 
answerable in damages for any loss or injury, except they result from 



LAW OF MAGISTRATES. 227 

the act of God, or the enemies of the State. Cook vs. Gourdin, 2 
N. & M'C, 19. 

As a remuneration for these services and liabilities, he is allowed Rigius. 
a fixed rate of ferriage. >f3 is exempt from militia Juty, even in 
time of war; and he and liis slaves employed at his terry are exempt 
from road duties. Cook v;. Gourdin, 2 N. & M'C, 19; and 9th 
S. L., 515. 

Sd. Rates of, and collecting toll, and of personr exempt. 
By Act of 1827, 6th S. L., 307, i.e. 4 ; the proprietor or pronrie- Notmore 

^ .' '' ' ^ ^ ^'- than double 

tors of any bridge, ferry, or turnpike road, shall not be permio.ed to interest, 
receive in tolls or ferriage, for his, her, or their own use, more than 
double the established legal interest of the State, at the time of such 
receipt, on the capital invested in such bridge, ferry, or turnpike road, 
over and above the current expenses attending the same : and this 
capital shall be estimated and settled in the following manner, that is 
to say: the vaiu? of the real estate of the grantee or grantees, 
required for the works authorized by his, her or their charter, shall 
be fixed by the act granting or authorizing the charter, and when this 
is not done, the said estate shall be regn-rdod as of no value. To 
this sum thus fixed by act, shall be added all the expenses of the con- 
struction of the said work, and the extinguishment of the title to lands 
of other persons required therefor. And a commission constituted as 
hereinafter expressed, shall examine the accounts and vouchers ofto°M^mfne^ 
such expenses, as soon as the said works are completed ; and the said "'^'^°""'^' 
commission, or a majority of them, shall thereupon declare the amount 
thus vouched, together with the sum fixed, as the value of the real 
estate of the grantee or grantees, to be the capital of the said charter; 
and when any addition or extension of the said work shall thereafter 
be made, a further account thereof shall be taken, examined and 
vouched, as aforesaid, and added to the said capital. The profits shall 
be estimated in the following manner, that is to say: wherever the 
proprietor or proprietors shall be required so to do, by a resolution or 
Act of the Legislature, by the Governor of the State, or by any other 
person or persons, duly ;ippointed or authorized by the Legislature for 
that purpose, he, she, or they, shall keep for the year, beginning on 
the first day of January following, a correct account of all the tolls or 
ferriages, by him, her or them, or any other person received on 
account of the said work, specifying the receipts of each day, and the 
description of travelling, on which the same may have been paid; and 
also shall keep a correct account of all expenses, by him, her or them, 



•228 LAW OF MAGISTRAITS. 

iocurred, in keeping and repairing the said work, during the said year; 
and the said accounts shall be submitted to the commission aforesaid, 
who, after the same shall have been by them esamined, vouched and 
approved, shall report the whole amount of rooripts and expenditures, 
approved by them to the next Legislature, together with the items of 
accounts shewing the ^ame. Where the commissioners are not 
satisfied with the accounts of one year, they may continue it, not 
exceeding three years, and report the result of each year to the 
Legislature in manner aforesaid. And thereupon, the surplus of 
actual profits, beyond the profits limited by this act, may be, by the Le- 
gislature, ordered to be applied to the extinguishment of the said capital. 
It shall be the duty of the proprietor, or proprietors of every bridge, 
Amcri-rof ferrv, or turnpike roar!, to cause to be entered in a book, to be kept 
entered in a by the treasurer of the upper division, the amount of his, her or their 
capital, and every enlargement or extinguishment thereof, within three 
months afler the same shall have been settled and established. — lb., 
sec. 5, 303. 
Row to When anv loss shall be sustained at any bridge, ferry, or turnpike 

proceed ' j a ' j ■ r 

where any road, for whichsuit shall bs brought and tried, and a recoverv had 

loss shall be _ _ ^ 

sustained, against the proprietor or proprietors, and the jury s'c?!! find that the 
loss was occasioned without any actual negligence ort his, her, or 
their part; or the attorney general or solicitor of the circuit shall cer- 
tify, that he had notice to atteud the said trial, and that there was no 
proof of actual negligence; the amount of the said recovery and costs 
may be charged as a part of the current expenses of the year in which 
the loss happened; and as such, shall be admitted by the commission 
above mentioned. — Tb,, sec. 6. 

The proprietor, or proprietors of a chartered bridge, shall be 
be insured, autnonzed to have the same msured aorainst ail risks, and the pre- 
mium paid on such insurance shall be charged in the current expenses 
of the year in which it is paid, and as such, shall be admitted by the 
commissioners; prodded, such premium shail not exceed three per 
cent, on the cost of the bridge ascertained as aforesaid — lb. sec. 7. 
Insurance The proprietor, or proprietors of any chattered ferry, may effect 

™fi«>^ insurances against ail losses tliat may take place at the said ferry, and 
^^^^*^ which he or they may be liable to pay; and the premium paid on 
such insurance shall be charged in the current expenses of the vear 
in which it is paid, and as such, shall be admitted by the commission- 
ers ; or in case no scch insurance shall be effected, the proprietor or 
proprietors may charge to the said current expenses in each year, a 



LAW OF MAGISTRATES. 229 

sum not exceeJiag six per cent, on the capital invested in the said 
ferry. — lb., sec. 8th. 

The rate of tolls receivable at any bridge or turnpike gate, shall be Rates of toil. 
as follows, unless otherwise expressed in the act, granting or autho- 
rizing the charter. 

For every ct^rriage with four wheels, for the conveyance of 
persons, (except stage coaches, running regularly on 
the road,) drawn by four horses or mules, - Si 00 

Drawn by three horses or mulos, - - - - 75 

" " two " "... 50 

For every other carriage, with four wheels, drawn by six horses, 

oxen, or mules, or more, - - - - 75 

Five horses, oxen, or mules, or more, ... 625 

Four " u ii a ... 50 

Three " " " " . . . 37^ 

For every carriage with two wheels, for the conveyance of 

persons, drawn by two horses or mules, or more, - 50 
For every carriage, other than for the conveyance of persons, 

drawn by four ho: ses or mules, - - 50 

Drawn by three horses or mules, . . - . 371 

For every other carriage, .... 25 

" " person on horseback, or leading or driving a horse 

or mule, ...... 12^ 

" " ied horse or mule, accompanying a person on horse- 
back, ...... 6 J 

" " horse or mule in drove, ... 4 

" " head of cattle, .... 3 

" " hog, sheep, or goat, .... 2 

" " animal for show, in addition to the carriage in 

which it may be conveyed, ... 50 

" " foot passenger crossing a bridge, - • 6^ 

But no foot passenger shall be liable to pay toll for passing a turn- 
pike gate. — lb., p. 309, sec. 9. 

The rite of all toll or ferriage, expressed in any charter, or in this rp^,, ^^^y j,e 
act, shall be the maximum of toll to be received, but may be dimin- '^""'°'^'^^*'' 
ished by the proprietor or proprietors, at pleasure, or by the Legis- 
lature, when there shall have been in the year or years in which the 
last account was taken, a surplus of actual profit beyord the profit 
authorized by this act; Provided, that such diminution by the Legisla- 
ture shall not exceed the rate of such surplus, nor shall any diminution, 
ordered by the Legislature, continue beyond the year in which the 



•230 LAW OF MAGISTRATES. 

next account of profits shall be rendered to the Legislature in manner 

aforesaid, on such requisitions as aforesaid, or at the request of the 

proprietor or proprietors. — lb., sec. 10. 

Tolls to be The tolls demandable and payable at the toll gate of any bridge or 

passing the turnpike road, now constructed or hereafter to be constructed by the 

^^^' authority of the Legislature, shall be paid, if required, before passing 

the gate, in the bills of the Bank of the State of South-Carolina, or 

some other incorporated Bank of this State, which redeems its bills in 

specie whenever presented, or in gold, silver, or copper coins of the 

United States, or in such foreign coins as are made by law, current in 

this State. The collectors at the gate or ferry shall make change of 

all such coins or bills offered him in payment of tolls, under the value 

of five dollars, except six-and-a-quarter and five cent bills, or coins 

M'hich shall always be paid to the collector, where a less sum is due 

to him for tolls, unless the exact change shall be tendered him in the 

copper coin of the United States. — lb., sec. 11. 

Warrant Jn case the toll is not paid before passing the gate of any turnpike 

issued to road, bridge, or ferry, and shall be refused or neglected to be paid, 

collect tolls. . . . ° r ' 

immediately after, the collector may issue his distress warrant for the 
same, and cause it to be levied on the carriage, horse, animator other 
thing, which has incurred the demand for toll, or any article or thing 
conveyed in such carriage, or on such horse, animal or thing; and the 
things so distrained shall be disposed of in the same manner as goods 
distrained for rent arrear, are or may be disposed of. — lb., sec. 12. 
persons Exemption from the payment of toll, at every bridge, ferry and 

loll. turnpike road, hereafter chartered, shall be granted to every regularly 

ordained or licensed minister of the gospel; to every member of the 
Legislature, going to or from its sittings, and all other persons going 
to and returning from divine service, and to every person travelling, 
in the performance of any civil or military duty, for which he receives 
no salary or reward; and to every person, whose duty it may be made, 
by law, to examine the said work, with not more than one servant, a 
carriage, and two horses; and that all other exemptions heretofore 
granted, be repealed. In time of war or insurrection, troops, with 
their baggage, artillery, and munitions of war, exclusively in the service 
of this State, shall pass every bridge, ferry, and turnpike road, at one 
half of the established toll or ferriage. — lb., sec. 13. 

Ath. Fines and Penalties, and how Recovered. 

faldngmo'rt ^"^ ferryman, person or persons, owning or keeping any bridge 
I'egLi'.*'^ or ferry, who shall receive greater toll or ferriage than is allowed by 



LAW OF MAGISTRATES. 231 

law, shall forfeit and pay the sum of five dollars, to be recovered 
before any justice of the peace, one half of which shall go to the 
informer, and the o'her half to the use of the poor of the parish, in 
which such sum is recovered. 9th S. L., 478. 

By Act of 1823, 9th S. L., 528; If the owners, keepers, or proprietors penalty on 
of any of the ferries or bridges,established by this act, shall insist oii, ferries. 
or compel, by threats, or other means, or receive payment of toll or 
ferriage from any person exempt by law from the payment of the same, 
or a greater sum than is allowed by law, such person or persons, 
guilty of such exaction or reception, shall be subject and liable to a 
forfeiture often dollars, for the use of the person or persons illegally 
paying the same, to be recovered by warrant under the hand and seal 
of any justice of the peace or quorum in this State, living in the district 
adjoining the said ferry. The ferries subject to this clause are, 
Lewis's, on Tiger River; Guignard's Bridge, on South Edi.-^fo; 
Gowers's Ferry, on Combahee; Mickles' Ferry, over Wateree; 
Gambrill's Bridge, on Saluda; Kingsbury's Ferry, on Catawba; and 
Puckett's Ferry, on Saluda. 

Every person keeping a ferry shall employ a free white man con- For not 
stan'tly to attend to the same, and on failure thereof, shall forfeit foi wmtemau. 

every month of neglect, to provide such person, four pounds procla- 

ntation money, (according to Brevard, equal to £3; equal to $13 32 
cents,) for the use of such person or persons as shall prosecute for the 
same, to be recovered on conviction, on the oath of one or more cre- 
dible witnesses, before any one justice of the peace, by warrant of 
distress and sale of the offenders' goods. 3d S. L., 626. 

And if he shall transport, or suffer to be transported, across such passing 
ferry, any servant not having a note or certificate, under the hand and without note 
seal of a justice, he shall forfeit the same amount, to be recovered to 
the use of the owner of such servant, four pounds proclamation 
money. — Ibid. 

If any person or persons shall meet with unnecessary delay at any ppnaity fcr 
public ferry, bridge, or causeway, established by law, every such 
person shall recover from the persons keeping such ferry, bridge, or 
causeway, for every hour of such unnecessary delay, the sum of forty 
shillings, to be recovered on application from the party aggrieved, by 
warrant and execution, from any neighbouring magistrate. 9th 
S. L., 312. 

Every ferry owner and keeper, shall provide and keep attached to 
each end of his ferry flat or flats, a good and sufficient apron, or not 
having such apron, shall keep at each and every landing place, a good 



232 



LAW OF MAGISTRATES. 



Not keeping 
up rates. 



For not 
keeping 
banKs in 
order. 



and sufficient abutment or inclined plane for the same; and for default, 
shall be fined in a sum not exceeding ten dollars for every three 
days continuance of such default, to be recovered in any Court having 
competent jurisdiction of the same; one half to the informer, the other 
half to the State.— Ibid, 544. 

If any owner or keeper of a ferry, bridge, or causeway, shall 
neglect or refuse to keep fixed up their several rates, as established 
by law, they shall forfeit all such toll as they would be entitled to 
receive. — Ibid, 396. 

It shall be the duty of every person keeping a ferry, to keep in good 
order the banks of the river or creek at such ferry; and in case of 
neglect, shall be subject to a fine of three dollars, for each and every 
day of such neglect, the same to be recovered before any magistrate 
having competent jurisdiction. — Ibid, 443. 

If any person living within one mile of any established ferry, shall 

Persons for any fee, toll, or reward whatever, transport any person, goods, or 

mile of ferry cattle, from one side only to the other of that river, where any such 

transport, established ferry shall be kept, in every such case, he shall forfeit and 

pay to the owner of the ferry next adjacent the place where such fare 

was taken up, treble the value of the fee, toll, or reward, given, paid, 

or promised; to be recovered before a magistrate, according to the act 

for the trial of small and mean causes, any law. usage, or custom, to 

the contrary notwithstanding. . But if a passenger be delayed more 

than half an hour, at any such ferry, then any person living near, niay 

transport them. Ibid, 123. 

If any person or persons shall wantonly or wilfully injure or destroy 
any bridge or causeway, now or to be established by law, every such 
person, on indictment and conviction of the same, at the Court of Gen- 
eral Sessions, in the district v.'here the ofl^ence Vv^as committed, shall 
be subject to such fine and imprisonment as either the said Courts 
shall direct. — Ibid, 311. 

Any person who shall lead, drive, or having charge thereof, shall 

ttie driving permit anv carriage, animal, or other thing, to travel over any turn- 
other tlian t^ J o ' ' " J 

on the right pjjje road, causev, or bridge, other than on the rijjht of the centre 

of centre. ^ t j ^ r^ ^ o 

thereof, shall, on conviction thereof, before any Court of competent 
jurisdiction, pay a fine not cxceeciing ten, nor less than two dollars, 
and be further liable for the damage occasioned thereby. 6th 
S. L., 314. 

The same penalty is affixed to the offence of crossing such bridge 

Or faster , \, , . . ^ , i, f, . , 

thana walk, more than ten feet long, in agait taster than a walk. Ibid, 



Penalty on 

injuring 

bridge. 



Penalty for 



LAW OF MAGISTRATES. 233 

No person shall carry over, or otherwise have or place any fire on No fire to be 

1 1 • I I'll • I r • r 1 carried on 

any wooden bridge, or bridge, the superstruclion whereof is oi wood , briuge. 
constructed by the authority of the legislature; and for conviction shall 
pay as above. — Ibid. 



FINES. 

The sheriff of each district, and every justice of the peace and 
clerk of any Court, after receiving any fine or forfeiture, shall, as 
soon as may be, pay the same into the public treasury, excepting such 
fines and forfeitures, as may be appropriated to the use of such district: 
and if any sheriff^ or his deputy, or any clerk of a Court, shall keep 
in his hands any monies, which shall be paid to him for any fine or 
forfeiture, for any space of time more than two calendir months after 
such monies shall have been delivered to him, he shall forfeit triple 
the amount of the sum so detained ; and every sherifF, justice, and 
clerk of a Court, shall cause to be kept a just and regular entry of all 
fines and forfeitures, that shall come into their hands, respectively; 
and if any fraud, or wilful failure, shall be committed by any sheriff, 
deputy sheriff, justice, clerk of a Court, or constable, in levying, pay- 
ing, or accounting for, any fine, or forfeiture, and he be thereof con- 
victed, the offender shall forfeit triple the sum, whereof there shall be 
committed fraud, or failure, and be thereafter incapable to hold his 
office : provided, that all forfeited recognizances, and fines imposed 
for trespass or misdemeanor, or for default of jurors, shall be subject 
to the payment of twelve dollars and eighty-five cents, for every session 
sermon that shall be preached at any district Court. 1787, P. L., 
420. 

All fines, penalties and forfeitures, recovered in any Court of justice 
in this State, and not appropriated by Act of Assembly, shall be paid 
into the public treasury. 1769, P. L., p. 27 "2. 

It shall be the duty of the several clerks of the Courts in this State, 
to collect and receive all fines inflicted, and forfeitures incurred in 
their respective Courts, and to pay the same over to the treasurer of 
the division, in which they reside, respectively, on, or before, the first 
day of October in every year ; and to render an account thereof to 
the comptroller-general, as heretofore required by law, 1820, Sess. 
Acts, p. 12. 

30 



234 LAW OF MAGISTRATES. 

It shall be the duty of the attornej^-general, and each of the eolicitors 
of the different circuits, to certify to the comptroller-general, on, or 
before, the first Monday in October in every year, the fines and for- 
feitures which have been had or inflicted by the Courts on his circuit, 
within the year next preceding the day aforesaid ; and it shall be the 
duty of each of the clerks of the several circuit Court districts, to return 
to the comptroller-general, on, or before, the first day of October in 
every year, an account, upon oath, of all the fines and forfeitures 
inflicted, had, or received, within his district, and of the manner how 
appropriated, or remitted : and in case of failure of any clerk, to 
render such account, he shall forfeit and pay the sum of two hundred 
dollars, to be recovered in any Court having jurisdiction : and 
it shall be the duty of the comptroller-general, to direct the attorney- 
general, or solicitors, as the case may be, to sue for and recover the 
said sum of such clerk, as shall fail to render such account : and 
should the said attorney-genera], or solicitors, not perform the duty 
hereby required, they shall be subject to the penalty of one hundred 
dollars, to be recovered in any Court having competent jurisdiction. 
1810, Sess. Acts, p. 16. 

In every case where any recognizance shall be adjudged forfeited, 
or where any fine shall be imposed by, or recovered lor the use of the 
State in any district Court, or before a justice of the peace, if the 
party incurring such fine or forfeiture shall fail to pay down the same, 
with the costs of prosecution, a writ, in nature of a writ o^Jieri facias, 
shall issue, by virtue of which the sheriff or his deputy shall sell (in 
the same manner as property is sold under execution in civil rases,) 
so much of such offender's estate, real, or personal, as may be neces- 
sary to satisfy the fine, or forfeiture, and also the costs of prosecution, 
and also the reasonable charges of taking, keeping and selling such 
property; returning the overplus, if any, toihe oftender, together with 
a bill of the fine or forfeiture, with costs and charges, if he require it: 
but the sheriff shall sell every other part of the personal estate, before 
he shall sell any negro. And if the sheriff, or his deputy, return, on 
oath, that such offender refused to pay, or hath not any property, or 
not sufficient whereon to levy, then a writ of capias ad satisfaciendum 
shall issue, whereby he shall be committed to the common jail, until 
the forfeiture, costs and charges, be satisfied ; entitled however to the 
privilege of insolvent debtors. 1787, P. L., p. 420. 



LAW OF MAGISTRATES. 235 

FIREARMS. 
[See Arms.] 



EIRE HUNTING. 

By Act of 1789, 5th S. L., 124; That any person, or persons, who penalty on 
shall hunt with fire in the nighttime, for every such offence shall h"nt"with ° 
forfeit and pay a sum not exceeding two poiuids, and for every deer tj^e'.""'^ ' 
so killed, a sum not exceeding five pounds; and for every horse or 
head of neat cattle, or other stock of any kind, a sum not exceeding 
ten pounds, which penalties shall and may be recovered before any 
one justice of the peace, and four disinterested freeholders, in the 
pari-sh or county where the offence shall be committed; and when 
recovered, shall be paid one half to the use of the parish, and the 
other half to the use of the informer, who shall sue for and recover 
the same; and in default of paying such fine, the justice may commit 
the offender, without bail or mainprize. to the common jail of the 
district, for a term not exceeding three months. 

In addition to the above penalties, such person is liable to an action at a'so liable 

' ' to actioo. 

law by the person aggrieved by the killing of horse or other stock. — lb. 

In case any slave be detected in fire hunting, or shall kill in the Punishment 

... , , , , , , . , ofslavefor. 

night tmie, any deer, horse or neat cattle, or stock of any kmd, not 
the property of his master or owner, such slave shall, on conviction 
thereof before any one justice, and^bwr (by Act of 1829, Jive) free- 
holders of the county or district where the offence was committed, 
receive such corporal punishment, not extending to life or limb, nor 
exceeding thirty. nine lashes, as the said justice and freeholders shall 
direct; or in case it shall appear upon evidence to the satisfaction of 
the Court, that the said offence was committed with the privity or 
consent of the owner or overseer of said slave, such owner or over- 
seer shall be liable to the penalty, to be recovered and applied as pre- 
scribed by this act, where he commits the offence personally. — lb. 

It shall and may be lawful for any justice of the peace, before justice to 
-whom information may be lodged for any breach of this ordinance, to f "g'^^^ders. 
issue his warrant to any lawful constable, commanding him to sum- 
mon a sufficient number of disinterested freeholders, to appear at a 
time and place certain, for the purpose of hearing and trying, and 



LAW OF MAGISTRATES. 

determining on the said information; and the freeholders so summoned, 
are required to attend, on pain of forfeiting ihe sum often shillings 
each, to be levied and applied as hereinbefore mentioned, by the 
authority of the same justice, unless such defaulter give good and suffi- 
cient cause, on oath, to the satisfaction of the said justice. — lb. 

The justice shall administer to the freeholders, before their entering 
on trial, the following oath : 

"I, A. B., do swear (or affirm) that I will, to the best of my 
judgement, without partiality, favour or affection, try the cause now 
pending between A., plaintiff, and B., defendant, and true verdict give 
according to the evidence : So help me God." — lb. 



FISH, AND FISHERIES. 

If any white person, by any means, shall poison any creek in this 
province, he or they, upon proof made thereof before any justice of 
the peace, shall forfeit ten pounds current money; (equal to 86 98 cts.) 
and in case any slave shall be proved guilty of the same, by the evi- 
dence of any other slave, before any justice of the peace, (and by the 
Act of 1839, five freeholders), the Court is empowered to order the 
said slave, so convicted, to be publicly whipped, not exceeding thirty- 
nine lashes. 



1st. List of Rivers and Creeks REauiRED to be kept open 

FOR THE PASSAGE OF FiSH, AND THE WIDTH OF PASSAGE. 

2d. Commissioners of certain Rivers, and their duty. 
3d. Penalties, and removal of Obstructions. 

1st: Creeks and Rivers to be kept open. 

List of Names. 
Broad River, . - . . . 

Catawba River, - .. . . 

Chinquepin creek, up to Ilorsepen branch, 
Enoree River, to Gnn's Mill, - - - 
Keowee River, - - - . - 
Little River, or Deep creek, ... 
Lyncii's Creek, Big, . . - - 
Lynch's Creek, Little, half of the width of Creek, 
Pacolet to Easterwood's shoals, 
Saluda River, - - - - 
Stephens' Creek, - - . . 
Thompson's Creek, - - . 
Tyger River, .... 

Wateree River, ... 

Reedy River, ... - 



Width of Passage. 


Vol 


1. 


Page 


GO feet. 


6th S 


i. L. 


340 


- 60 


" 


<< 




<c 


6 


(( 


5th 


" 


578 


20 


St 


6th 


(( 


340 


- 60 


(C 


5th 


(( 


647 


10 


t< 


5th 


(( 


c< 


- 8 
Dreek, 


« 


5th 
Cth 


IS 


218 
700 


60 


ti 


6th 


<< 


340 


. 60 


<< 


5th 


(( 


383 


suffi 


cient. 


7th 


« 


531 


- 6 feet 


5th 


" 


578 


sufficient. 


7th 


IC 


531 


- 60 feet. 


6th 


<c 


340 


10 


li 


5th 


<I 


700 



LAW OF MAGISTRATES. 237 

2(Z. Commissioners, and their Duty. 

For each of the rivers or sections, hereafter named, there shall be commis- 
appointed a lioard or rive Commissioners, by a joint resolution oi both appointed. 
branches of the Legislature, who shall serve three years, from the 
date of their appointment, and for neglecting to serve, shall be subject 
to pay a fine of twenty dollars, to be retiovered before any Court of 
competent jurisdiction, to be paid into the public treasury. 

One Board for Saluda River, from its junction with the Congaree to Board of 
the Newberry Line, to be called the Saluda Board of Fish Sluices, sioners. 

One Board for Broad River, incluling the Congaree, above Granby, 
to the Newberry Line, called the Broad River Board of Fish Sluices. 

Another for Broad River, commencing at the Newberry Line, and 
extending to the Ninety-nine Islands, called the Upper Broad River 
Board. 

One for Pacolet, commencing at the mouth, and extending to Eas- 
terwood's Shoals, called the Pacolet River Board. 

One Board for the Wateree and Catawba Rivers; (by Act of 1838, 
6th S. L., 598, to consist of nine persons, four of whom to reside below 
Pickett's Mills) from the foot of Graves' Shoals to the mouth of 
Fishing Creek; ?,nd one Board from the mouth of Fishing Creek to 
the North-Carolina Line; to be called the Catawba Board of Fish 
Sluices. 

It shall be the duty of said Boards, on their respective rivers, touutyofBaid 
designate the fish sluices thereof, so as to leave one or more passages ^°''^ ^' 
for fish up the said rivers; which sluices shall be sixty feet wide, or 
where there are two or more such sluices, they shall be together sixty 
feet wide; and when they shall be so designated, it shall be lawful for 
any person to open such sluices. But the said Boards have no authority 

•' Not to open 

to designate any fish sluice through any dam erected by public authority sluice 

r , . ." , , , throughdam. 

for the improvement of the navigation, or through any dam erected 
by individuals for the purpose of propelling machinery, where the 
owner of said dam shall leave open a part of the river, sixty feet wide, 
or shall construct in the dam, a sufficient fish sluice, sixty feet wide, 
and shall keep open the same during the months of Februar}, March, 
and April. 6th S. L., 341. 

The Catawba Board shall designate fish sluices but once a year, and 
whenever changed, in any year, it shall be done on or before the 
first day of October. — Ibid, 599. 

Sd. Penalties, and removal of Obstructions. 
Every owner of a fish dam, mill dam, hedge or other obstruction on 



23S LAW OF MAGISTRATES. 

Lynch's Big Ljnch's Creek, is required, at all times, from the 15th day of 
February to the first day of April, to provide and keep open a passage 
for fish, at least eight feet wide, or a canal of the same width, and of 
suflScient depth; and for every day's neglect thereof, shall forfeit and 
pay six pounds, lawful money of this S:ate, to be recovered in any 
Court of competent jurisdiction, by any person who shall inform and 
sue u)r the same, one moiety to the use of the county, and the other 
to the prosecutor. 5th S. L., 218. 

Ghinquepin The Owners of (lams or obstructions, except mill dams, on Chin- 

andThomp- •y^i -ii" -^-i j 

son's Creek, quepui (yrecK, are required to keep open a passage six feet wide, and 
for default, shall forfeit and pay to any persort who shall inform and 
sue for the same, five dollars for every week of neglect; and on 
Thompson's Creek, for every day's neglect to provide such passage, 
the forfeit is five dollars. 5lh S. L., 279. 

Penalty for Any persons who now have, or hereafter shall erect any fish dams 

obstriicliug " . "^ . ^ 

Keowee or mill dams, obstruction or nutter wheel, or contrivance, artifice, or 
machinery in the Keowee, which is intended, or has a tendency to 
prevent the free passage offish, shall forfeit and pay to any person 
who shall inform and sueforthe same, the sum often dollars for every 
six hours during which such obstruction shall continue. 

Mill dams or fish dams may, however, be erected on said river, if 
the boat sluice and thirty feet on each side, or sixty feet on the dam 
side, where the sluice runs near the bank, be left open. 
Tweive'^M.ie Any person who shall erect an obstruction across the waters of 
Rims'."'* Deep Creek, or the rivers Twelve Mile, or Little River, and shall not 
leave a passage at least ten feet wide, shall forfeit and pay to any 
person who shall inform and sue for the same, before any justice of 
the peace, ten dollars for every twenty-four hours during which such 
obstruction shall continue. 

The aforesaid obstruction, <Sic., shall be considered nuisances, 

and may be abated as such, by any person or persons whomsoever. 

5th S. L., 647. 

Penalty for ^^y P^'so" having a dam or obstruction across Reedy River, from 

Reedy Rivlr. '^^ mouth to the Tumbling Shoals, shall, at all times, between the 15th 

of February and the first day of May, keep a passage at least ten feet 

wide, sufficient to let the fish pass freely, and for every twenty-four 

hours neglect to do so, shall forfeit and pay to the use of the informer. 

six dollars, to be recovered before any justice of the peace of the 

district. 

Lynch's And the owners of dams or obstructions of Little Lynch Creek, 

shall leave open one half the width of the creek; and for every five 



LAW OF MAGISTRATES. 239 

days neglect to do so, shall severally forfeit and pay twenty dollars, to 
be recovered before any one justice, one half to the informer, the 
other half to the use of the poor of the distiict; and any three of the 
inhabitants of the district are authorized to remove such obstruction. 
5th S. L.,700 

If any person shall obstruct a sluice, opened by the Soard of Com- penalty for 

o I 1 n 1 T-i 1 1H7- 1 «~i 1 i-> ■ obstructing 

missioners (or oaluda, broad, racolet, vYaterue, and Latawna Kivers, tish sluices. 
such obstruction may be abated as a nuisance, and the party erecting 
the same, on conviction, shall be fined in a sum not exceeding twenty 
nor less than five dollars, before any Court having competent juris- 
diction, and if said fine be not paid, shall stand committed, not exceed- 
ing ten days, one half the fine to the informer, the other to the treasury 
of the State. 

No person shall erect a trap or device, for catching fish, or fish jjq ,rap or 
with any net or seine, within eighty yards of any dam, erected at the within 
expense of the State, across any stream intended thereby to be rnade o/j^^,sf' ^ 
navigable, in which dams there be a sluice for the passage offish, on 
pain of being liable to pay twelve dollars for each oft'ence, to be reco- 
vered before the Court of Sessions of the district, one half to the infor- 
mer, and the other to the support of the Avork, to which the dam is 
attached; and such trap or other device may be abated as a nuisance. 
6thS. L., 340. 

If the fine be not paid, the party may be committed to close custody, 
not exceeding ten days. 

If any person shall erect a dam, trap, or other device, f<)r fishing no trap in 
between the Broad River Dams, and fifty yards below the Islands,with ueaidams. ' 
which said dams are connected, and between the Islands, or the 
Islands and main lands, he shall be fined for ever) such ofl^ence, 
twelve dollars, to be recovered before any justice of the peace of 
Richland or Lexington districts, one half to the informer, and the 
other to the funds of the Columbia Canal, and such trap or device 
may be abated as a common nuisance. 6th S. L., 372. 

Any person who shall be convicted, by indictment, in the Court of Fine if 
Sessions, of obstructing fish sluices in any of the rivers of this State, by inUict- 
shall pay a fine of one hundred dollars. 6th S. L., 569. 

Any person who shall take and carry away from any fish trap, any stealing 
fish, being in said trap, with intent to defraud and deprive the owner, 
or owners of said trap, of said fish, shall be deemed guilty of a misde- 
meanor, and on conviction thereof, by indictment, shall be punished by 
fine, not exceeding two hundred dollars, and imprisonment, not exceed- 
ingsix months. 



240 LAW OF MAGISTRATES. 

obstr.icting Any person who shall place, or cause to be placed, any trap, near 
any boat sluice, in any river, so as to injure the free navigation of 
said river, shall forfeit for each offence, one hundred dollars, to be 
recovered by indictment. 6th S. L., 393. 



FORCIBLE ENTRY AND DETAINER. 

1st. What is a Forcible Entry. 

2d. What is a Forcible Detainer. 

3d. How puxisiiable at the General Sessions. 

4th. Proceedings for Restitution. 

5th. Precedents. 

1st. What is a Forcible Entry. 

A forcible entry is where an entry is made into lands, tenements, 

benefices of holy Church or other possessions, where no entry is 

given by law, or where an entry be lawful, and the party enters with 

strong hand, with unusual weapons or an unusual number of servants, 

or multitude of people. 

Of entry by An entry may be forcible, not only in respect of violence done to 

Threatsf ""^ the person of a man, but also in respect of any other kind of violence, 

in the manner of entry. As by breaking open the doors of a house, 

whether any person be in it or not; and though a man enter peaceably, 

yet, if he turn the parly in possession out by violence or threats, this 

also amounts to a forcible entry, but not if he merely threaten to spoil 

the party's goods, or destroy his cattle, or do any injury which is not 

of a personal nature. 

Also, conti- Also, persons continuing in possession of a defeasible estate after 

possession, the title is defeated, are punishable for a fljrcible entry; for continuing 

'. in possession afterwards, amounts in law to a new entry. 1 Tomlins, 

810. 

May be of a This offence may be committed of a rent as well as of a house and 
rent. •' 

land, as where one comes to distrain and the tenant by force or 

threats, makes resistance. 2 Shep.,20i. 

Not of an But forcible entry cannot be of an easement, or of a common, or 

easement. 

office. 
Nor of one's So no man can be ffuilty of a forcible entry for entering into. lands 

own house. . . 

or houses in his own sole possession at the time of entry; as by break- 
ing open doors of his house, detained from him by one who has the 



LAW OF MAGISTRATES. 241 

• bare custody ; tut joint tenants, or tenants in common, may be guilty 
of forcible entry in lit'iiing out their companions. 1 Haw., P. C. 

Ifan entry be* surreptitiously obtained, yet if it be continued by surrep- 
force, it will be regarded as forcible, and whenever an unlawful entry "° ''^' 
of one, necessarily dispossess the other, it will be a forcible entry. 
State vs. Burt., .2 Tread, 489. 

A forcible entry may be committed by a single person, as well aswhomay 
by twenty, and all who accompany one when he makes a forcible 
entry, shall be adjudged to enter with him, whether they come upon 
the lands or not. And an infant o\ fe?ne covert may be guilty of this 
offence, ir< respect of violence committed by them in person, but not 
for what is done by others at their command, their commands being 
void. 1 Tomlins, 810. 

2c?. What is a Forcible Detainer. 

A forcible detainer is where a man, who enters forcibly or peacea- 
bly, ■ thon.i'h unlawfully, atterwards retains possession by force or 
threats, and the detainer may be forcible, whether the entry be forci- 
ble or not. 1 Haw., P. C, c. 64. 

If a person, after peaceal)le entry, ^IilU make use of arms to defend 
his possession, it will be a forcible detainer. 

If I hear that persons will come to my house to beat me, and I take 
in force to defend myself, this is not a forcible detainer; but where they 
are coming to take lawful possession, it is otherwise. 

If a man have two houses next adjoining, the one by a defeasible ifo^e house 

title, and the other by a good title, and he uses force in that he hath deun^^' '° 

by the good title, to koep persons out of the other house, this is a^°°"'^''* 

forcible detainer. 2 Shep. Ab., 203. 

When a tenant keeps possession of the land at the end of his term Tenant 

holding over, 
against his landlord, it is a forcible detainer. And if a lessee takes 

a new lease of another person whom he conceives to have a better 

title, and at the end of his term keeps possession against his landlord, 

it is a forcible detainer. Cro. Jac, 199. 

If a justice of the peace come to view a force in a house, and they Refusal to 
refuse to let him in, this of itself will make a forcible detainer in all justice, 
cases, but it must be upon complaint made. Dalt., 312. 

But a person is not guilty of a forcible detainer by merely refusing 
to go out of a house, and continuing therein in despite of another. 
I Haw., 0. 64. 

If A. be tenant at will of B., and B, enters and commands A. tOwX" ' 
31 



242 



LAW OF MAGISTRATES. 



By indict- 
ment. 



Place 
described. 



quit possession, and he denies it, this is no forcible detainer, unless 
some act of violence be used. 1 Shaw's Justice, 453. 

Sd. How punishable at the General Sessions. 

The party grieved may be aided and have the assistance of the jus- 
tices at the general sessions, by way of indictment; which being found 
there, he shall be restored to his possession, by a writ of restitution, 
granted out of the same Court to the sheriff, Dalt., c. 129. 

No restitution is to be made where there is no forcible putting 
out, or holding out of possession, and found by a jury. 1 Shaw's 
Just., 444. 

And the tenement in which the force was made, must be described 
with convenient certainty; and must set forth that the defendant actual- 
ly entered, and ousted the party grieved, and continueth his possession 
at the time of finding the indictment; otherwise he cannot have res- 
titution, because it doth not appear that he needeth it. I Haw., 147, 
149, 150. 

Expulsion and disseisin must be expressly alleged in inquisitions 

and indictments on forcible entries ; but tenants at will are not within 

the statutes. Popham, 205; F. N. B., 248; Sid., 102; 1 Mod., 73; 

2 Keble, 709, Holme's case. 

* . . . 

Tenant at will hath no cfertain indefeasible estate, nothing that can 

be assigned by him to any other, because the lessor may determine 

his will and put him out whenever he pleases : for the lessee only holds 

at the will of the lessor. 2 Black. Com., 145. 

If a man's wife, children, or servants, do continue in the house, 
or upon the land, he is not ousted of his possession ; but his cattle 
being upon the ground, do not preserve his possession. Dalt., c. 
132. 

An indictment for forcible entry was quashed for not setting forth, 
that the party was seized or disseized, or what estate he had in the 
tenement; for if he had only a term for years, then the entry must be 
laid, into the freehold of A. in the possession of B. 3 Salk., 169. 

If the statutes are mis-recited in the indictment, it will be quashed. 
Croke, Eliz. 93, 96, 106, 107, 697; 1 Bulstrode, 218. 

The indictment was for a forcible entry into a copy-hold, viz : that 
the defendant ^ecit et disseisivit, for which reason it was quashed; 
because disseisin is applicable only to freehold, and therefore in all 
cases, except for a freehold, it ought to be ejecit, expulit et amovit. 
Raym., 67; 4 Inst., 176. 

If a forcible entry and detainer shall be made by three persons or 



LAW OF MAGISTRATES. 243 

more, it is also a riot, and may be proceeded against as such, if no 
inquiry hath before been made of the force. Dalt., c. 44. 

4:th. Of proceedings for Restitution. 

Where one has been forcibly ousted of an estate for years, or a 
greater estate, restitution may be had, either by indictment in the 
sessions, in which case a writ of restitution is awarded, on conviction, 
and the operation thereof is not suspended by appeal, (Bennet ads the 
State, 2d Rice's Dig., 340,) or by inquisition before two magistrates. 

The power of one justice to make restitution under the English of the 
Statutes, made of force, is taken away by the Act of 1829, 6th S. L., 
388, which provides, "That the forms and proceedings before magis- 
trates, in cases of forcible entry and detainer, shall hereafter be the 
same as are prescribed by law in cases where tenants hold over after 
the expiration of their leases;" and by the Acts of 1817, 6th S. L., p. 
67, and of 1839. p. 21, such cases are to be tried before the magistrates, 
and twelve freeholders. 

Any two magistrates of the district are authorized and required Drawing the 
upon complaint made, to place the names of twenty. four neighbouring ■|"„7go^,"fi„i. 
freeholders in a box, and from ihem draw the names of eighteen, and 
shall thereupon issue their warrant in the nature of a summons, 
directed to the sheriff or constable of the district, commanding such 
officer to summon the said eighteen freeholders, (better summon the 
twenty-four,) to attend at a certain time within four days, and at a 
place appointed ; and from the said eighteen freeholders so summoned, • 

tivelve shall be drawn in the same manner, who shall be empaineled 
to try the facts. Provided, that if, from the number of eighteen so 
summoned, the number of twelve cannot from any cause be had, the 
magistrates are authorized to complete the number from the remain- 
der originally selected. Acts of 1839, p. 21. 

The freeholders shall be liable to the same objections by either Freeholders 
party, as jurymen are, and shall be liable to the same fine for non- ^jjcted to, 
attendance, without sufficient cause, as jurymen are for non-attendance non atten- ° 
at the Courts The said fine to be imposed by the Court of Common ^"*^^' 
Pleas of the district at its next session thereafter; and it shall be the 
duty of the justices to return the names of those freeholders who shall 
so neglect to attend, into the office of the clerk of the said Court, who 
is hereby commanded to proceed against the defaulters, as against 
non-attendant jurymen. 6th S. L., 67. 

The said magistrates shall also summon the party charged, in the 
same way, and at the same time, to appear before them and shew 



244 LAW OF MAGISTRATES. 

Shall sum- cause, if any, why possession of the premises should not forthwith be 

moa the ■ . 

party restored to the complainant; and it upon hearing the case, they shall 

charged, and , •r'jii- -ii i • r- i • • 

deiennine. be satisned that he IS entitled to the possession of the premises in 
question, they shall so find, whereof the said magistrates shall make a 
record, and shall thereupon issue their warrant, directed to the sheriff 
of the district, commanding him forthwith to deliver to the complain- 
ant, his heirs or assigns, full possession of the premises, and to levy 
all expenses incurred, of the goods and chattels of the defendant. 
Acts of 1839, p. 21. 
execuTe" '^^^ sheriff shall execute the said warrant in ten days, and to that 

tef/da"'s'" ^"^ "^^y ^^^^^ open doors if he be resisted, and may call to his aid 
\.he jjosse comitatus; and for neglect or refusal to perform any of the 
duties required, he shall, in addition to an action for damages, forfeit 
and pay the sum of five hundred dollars, to be recovered by the party 
aggrieved, in an action of debt. 6th S. L., 68. 
St. Philip's The proceedings in forcible entry and detainer, in the parishes of 
st.Michaei'a. St. Philip's and St. Michael's, vary from the above, in that, one minis- 
terial magistrate prepares the case for trial, summons the parties, 
presents the case for docketing, and conducts the tiial as prosecuting 
officer. The freeholders also are drawn by him, in the presence of 
a judicial magistrate, from a box kept by the judicial magistrates. 
6th S. L., 486. 

« dth. Precedents. 

1st. A Record of a Forcible Detainer. 

District. > 55. 

Be it remembered, that on the day of in the year ' 

at in the district aforesaid, A. C. complained to me, I. P., one 

of the justices assigned to keep the peace in the said district, that E. 
E., of into the messuage of him, the said A. C, being the 

mansion-house of him, the said A. C, situated within the district 
aforesaid, did enter, and him, the said A. C, of the messuage afore- 
said, unlawfully ejected, expelled and amoved, and the said messuage 
from him, the said A. C, unlav,- fully, with strong hand; and armed 
power, doth yet hold, and from him detain, against the 01 m of the 
statute in such case made and provided ; whereupon the ^aid A. C. 
then, to wit, on the day of aforesaid, requ'red and prayed 

of mo the remedy provided by the statute, which complaint and prayer 
by me being heard, I personally went to the said messuage, and did 
then and there find and see the aforesaid E. E., the aforesaid raes- 



LAW OF MAGISTRATES. 245 

suage, with force and arms unlawfully, with strong hand and armed 
power detaining, against the form of the statute in such case made and 
provided; whereupon the said E. E. was arrested, and sent to the 
common jail of Charleston, by virtue of a mittimus duly issued by me 
for that purpose, concerning which the premises aforesaid, I do make 
this my record. In witness whereof, I do hereunto set my hand and 
seal, the day of , in the year 

2d. Mittimus for a Forcible Detainer. 

District. > ss. 

By I. P., one of the justices of the peace, for the district aforesaid. 
To the keeper of the common jail of 

Whereas upon complaint made unto me, by A. C. of , inihe 

said parish, I did this present day, go to the dwelling house of the said 
A. C. aforesaid, and there did* find E. E., of , forcibly, with 

strong hand, and armed power, holding the said house against the 
peace of this Siate, and ngainst the form of the statutes in that behalf 
made and provided: therefore I send you by the bringers hereof, the 
body of the said E. E., convicted of the said forcible holding, by my 
own view, testimony and record, commanding you to receive him into 
your said jail, and there safely to keep him till he shall be thence 
delivered in due course of law. Herein fail not at your peril. 
Given, &.c. 

^d. Affidavit. 

State of South-Carolina, } 
District, ^ 

Personally appeired before me, A. B., magistrate for the district 
and State aforesaid, C. D., and made oath, that he was in quiet and 
peaceable possession of a dwelling house, (or field, or other possession) 
situate, (describe its situation as correctly as possible,) which deponent 
held as tenant unto E. F., for a term of years, (or in his own right, 
and here set forth what estate,) yet unexpired, and that on the 
day of D. B., and (here insert all who were present, aiding 

and abetting,) did with force, threats, and violence, enter and take 
possession of the said premises, and by force have ever since kept, and 
do still keep possession of the same; (if they have departed, thenstate 
only the forcible entry, or if the entry be peaceable, and the parties 



246 LAW OF MAGISTRATES. 

detain by force, set forth the facts as they exist, as indictment will lie 
for either a forcible entry or detainer. 

Sworn to before me this } 
day of 18 ^ 

A. B., Magistrate. 

(feigned,) C. D. 

4:th. Warrant of Arrest. 

State OF South-Carolina, > 
District. ^ 

By A. B., magistrate, in and for the said State. 
To any lawful Constable. 
Whereas complaint on oath has been made unto me that (here set 
forth the facts, as in the affidavit.) 

These are therefore to command you to apprehend the said D. B., 
&c., and bring them before me, to be dealt with according to law. 

Given under my hand and seal, at , this day of , 

A. D. one thousand eight hundred and 

A. B. [l- s.] 

Magistrate. 

If the affidavit set forth a case rjiquiring restitution, then the magis- 
trate shall call to his aid another, and they two shall issue their joint 
warrant. 

5th. Warrant of two Magistrates for Freeholders. 

State of South-Carolina, ) 
District. ^ 

By A. B. and C. B,, magistrates, in and for the said State. 
To any lawful Constable, (or to B. A., sheriffof the said district.) 
You are hereby commanded to summon the freeholders, whose 
names are in the pannel hereto annexed, to be and appear before us, 
at , on the day of , (within four days) at 

o'clock, to inquire upon their oaths of and concerning a certain entry 
and detainer, forcibly done in a certain (house or other possession,) 
situated on ,in the peaceable and quiet possession of C. D., 

against the form of the statute, &c. And you are further commanded 
to summon D. B., &;c., who are charged with such forcible entry 
and detainer, to be and appear before us, at the same time and place, 
to shew cause, if any, why restitution of the said premises should not 



LAW OF MAGISTRATES. 247 

be made to the said C. D. Hereof, fail hot, on pain of the penalties 
that will fall thereon. 

Given under our hands and seals, this day of A. D., 184 

A. B.. [l. s.] 

Magistrate. 

C. B. ' [l. s.] 

Magistrate. 

Qth. The Jurors^ Oaths. 
To THE Foreman. 
You, as foreman of this inquest, shall true inquiry and presentment 
make, of all such matters as may come before you, in the case now 
pending for a forcible entry and detainer. You shall spare no one for 
favor or affection, nor grieve any one for hatred or ill will, but proceed 
herein according to the best of your knowledge, and according to the 
evidence that shall be given you. So help you God. 

To THE OTHERS OF THE JuRY. 

The oath that your foreman hath taken, on his part, you and each 
of you shall truly observe and keep on your parts. So help you God. 

7th. The Inquisition or finding of the Jury. 

State of South-Carolina, > • 

Disti'ict. \) 

An inquisition, taken for and In behalfofthe State of South-Carolina, 
at , in the said State, on the day of , in the year of 

our Lord, one thousand eight hundred and , by :he oaths of (here 

insert the name of the freeholders,) good and lawful men of the dis- 
trict and State aforesaid, before (name the magistrates,) two of the 
magistrates, in and for the said district and State. 

We find that C. D. was lawfully and peaceably possessed of a certain 
(here insert the premises, whether house, field, or other possession,) 
situated in the district aforesaid, (here describe the situation as cor- 
rectly as possible, by naming the neighbourhood, between what two 
neighbours, on or near what road, and on which side, if in a town or 
village, set forth the street and number, &c.,) of an estate (here set 
forth what estate the prosecutor has, whether an estate for a year or 
years, or for life, or in fee simple.) 

That on the day of , instant, (here name the parties 

who took possession,) with strong hand, and with force and arms, 
entered into the said premises, and expelled, ejected and removed the 
said C. P. thereof, and him so expelled, ejected, and removed of the 
said premises, until the day of the taking of this inquisition, and the 



248 LAW OF MAGISTRATES. 

same, with main force and power withheld, and now do withhold, 
against the form of the statute, in such cases made and provided, and 
against the peace and dignity ofthe said State. 

(This Inquisition must be signed by all the freeholders.) 

' 8/A. Writ of Restilution. 

State op South-Carolina, \ 
District. ^ 
To E. G., sheriff of the said District. 
Whereas, by an Inquisition had at , in the State aforesaid, 

on the day of instant, by the oaths of (here insert tho 

names ofthe freeholders,) good and lawful men of the said district 
and State, before us, , two of the magistrates, in and for the 

said district and State, it was found by the said freeholders, that C. D. 
was lawfully and peaceably in possession of a certain , situated 

in the district aforesaid (describe particularly the situation) of an 
estate (set forth the estate, according to the finding,) and that A. B., 
&c., did forcibly enter the said premises, and dispossess the said C. D., 
and doth still forcibly detain the same. These ar^, therefore, to com- 
mand you, forthwith, to eject the sai d A. B., &c., fronii the said 
premises, and to deliver to the said C. D., his heirs or as-signs, full 
possession ofthe same. Yo.u are also commanded, that of the goods 
and chattels ofthe said A. B., &;c., you levy the .sum of 
dollars, for the expenses incurred in the said proceedings; and of your 
manner of executing this warrant, you shall make return to us within 
ten days from this date. Herein fail not under the penalties that will 
fall therein. Given under our hands and seals, this day of 

A D., one thousand eight hundred and 

A. B. [l. 8.] 

Magistrate. 

C. B. ' [l. s.] 

Magistrate. 



FORESTALLING, ENGROSSING, AND REGRATING, 

Are offences generally classed together, as ofthe same nature, and 
equally hurtful to the public. The English statute again-,t these 
offences have been repealed, the remedy having been found worse 
than the disease, and the Act of 1739, of this State, was permitted to 
expire, so that they remain as offences, only indictable at Common 
Law. 



LAW OF MAGISTRATES. 249 

Forestalling is ibj buying, or bargaining Tor any corn, cattle, or Definition, 
other merchandizn by the way, as they come to the fairs or markets, 
to be sold, before they are bro ight thither to the intent to sell them 
again at a higher or dearer price. 

Engrossing is the getting into one's possession, or the buying up all Engrossing, 
of any commodity in market, with intent to sell it at an unreasonable 
price, and is an indictu1>le offence, and fineable at common law. 

Regrating is tl,e buying of corn or other dead victual in any mar- Regrating. 
ket, and selling it again in (he same maiket. 

The proceedings against a party for either of the above offences, 
should set forth the article bought, and the quantity. Tomlins, 831. 



FORGERY. 

Forgery, at common law, may be defined to be the fraudulent making Definition. 
or alteration of a writing to the prejudice of another man's right, for 
which the offender may suffer fine, imprisonment, and pillory. Be- 
sides the offence at common law, which is of the degrt.e only of a 
misdemeanor, there are many kinds of forgery, not only by making, 
but ijy using and uttering of which, the party is subjected to punishment 
by various statutes of this State, and by Acts of Congress. Until 
the Act of 1845, many kinds of forgery were punishable with death 
without benefit of clergy; but by Act of 1H45. p. 341, it is enacted, Actof 1845. 
that thflse cuses of forgery, which before ihat time were punishable 
with death, shall be punishable with whipping, iiot exceeding thirty- 
nine lashes, imprisonment not less than one, nor more than seven 
years, and fine at the discretion of the judge who may try the case. 

1st. Of the Written Instrument, with respect to which 

Forgery may be committed. • 

2d. Of the Making, or Alteration, or Uttering of such 
Instrument. 

3d. Of the Intent to Defraud, 

4th. Of the Punishment under the various Statutes and 
Acts of Congress. 

5th. Requisites of the Affidavit, &c. 

1st. Of the Written Instrument,, at Common Law. 
It is clearly agreed, that at common law, the counterfeiting of ^ ^^^^^^^ 
matter of record is forgery; for since the law gives the highest credit 
32 



250 



LAW OF MAGISTRATES. 



Or matter 
«f public 
nature. 

Or deed, or 
will. 



Private 
writings not 



to all records, it cannot but be of the utmost ill consequence to the 
public, to have them either forged or falsilied. 

Also, it is agreed to be forgery to counterfeit any authentic matter 
of a public nature. 

It is also unquestionable, that a man may be in like manner guilty 
of forgery at common law, by forging a deed, or will. And though 
much doubt has been thrown upon the question, whether the counter- 
feiting of private writings, not under seal, be forgery at common law, 
miderseai"' J^' '*- *^ ^^^^ considered as settled law, that forgery may be committed 
of any writing, which, if genuine, would opei'ate as the foundation 
of another's liability. 2 Russel, 350 and 51, n. 

By Act of Assembly. 

By Acts of Assembly, 2d S. L., 489, 3d S. L., 470, and 5th S. L., 
397, the following instruments are enumerated: the false'y making, 
or causing to be made, or the uttering and publishing of which, know- 
ing them to be falsely made, is forgery: namely, any deed, charter, 
or writing sealed. Court roll, or will of any person in writing, whereby 
another's freehold may be troubled, or whereby a lease or annuity may 
be claimed. 
Instruments Any deed, will, testament, bond, writing obligatory, bill of ex- 

thesubjectof , "^ '. „ , ° , , ,. 

forgery, change, promissory note for the payment of money or the delivery 
of goods, bank notes for the payment of money, or any indorsement 
or assignment of such bill of exchange, promissory and bank note, or 
any acquittance or receipt, either of money or goods, or any accep- 
tance of any bill of exchange, or the number or principal sum of any 
promissory note or bank note, or the number or principal sum of any 
accountable receipt for any note, bill, or other security for payment 
of money, or any warrant or order for the payment of money, or deliv- 
ery of goods. 

To falsely make, alter, change, deface or erase, or cause, or pro- 
cure to be so done, any of the records of this State, or any plat or plats 
of land, annexed or referred to in any grants, or which are lodged, 
entered, or enrolled in any record office in this State, is forgery also. 
It is forgery to counterfeit any pedlar's licence, or travel with such 
counterfeit licence, or with one granted to any other person. 

By Acts of Congress. 

The written instruments which may be the subject of forgery under 
the Acts of Congress, are judgements, certificates, or other public 
security; 1 S. L. U.S., 86. Any deed, power of attorney, order, 



under the 
statutes. 



Records of 
the State. 



LAW OF MAGISTRATES. 251 

certificate, receipt, or other writing, for the purpose of obtaining from instruments 

1 TT • 1 ci /• 1 . /v r the subject of 

the United btates, or any ot their omcers or agents, any sum of mo- forgery, 

r.i<MTTTc>i-ir^«. •• • • under the 

ney; 3d fe. L,. U. S., 1917. Any paper, writing, or instrument, in Acts of 

. '. . [ . , . , . f, n \ 1 1 • Congress. 

imitation or, or purporting to be an indent, certihcate ot the public 
stock, or debt, treasury note, or other public security of the United 
States, or any letters patent of the United States, or any bill, check or 
draft, for money drawn by, or on any treasurer or other officer, or 
agent of the United States; or any paper, writing or instrument, pur- 
poting to be, or in imitation of any letter of attorney or other author- 
ity, to assign or sell any share in the public stock or debt of the 
United States; or any instrument in imitation of, or purporting to be 
an official copy of the enrolment of any vessel, or a licence to any 
vessel, or a certificate of ownership, passport, sea letter or clearance, 
or a permit, debenture, or other official document, granted by a 
collector, or other officer of the customs, by virtue of his or their 
office; 3d S. L. U. S., 2003; certificates of citizenship, 2 S. L. U. S., 
1304; and consular certificates, 3d S. L. U. S., 1889. 

2f^. Of the Making, Alteration, <^c. 
The making, with a fraudulent intent, and without lawful authori- ., , . 

o ' ' Making 

ty, of any instrument, which, at common law or any statute, is the ^u.^j^'ent 
subject of forgery, is of itself a sufficient completion of the offence PuW'cation. 
before publication; and though publication be the medium by which 
the intent is usually made manifest, yet it may be proved as plainly 
by other evidence. 2 East. P. C, p, 855. 

Not only the false making of the whole of a written instrument, 
but a fraudulent insertion, alteration, or erasure even of a letter in 
any material part of a true instrument, whereby a new operation is Alteration, 
given to it, will amount to forgery; and this, though it be afterwards 
executed by another person ignorant of the deceit. And the fraudu- 
lent application of a true signature to a false instrument, for which it 
was not intended, or vice versa, will also be forgery. Thus, it is 
forgery in a man, who is ordered to draw a will for a sick person, 
to insert in it legacies of his own head, or to write a release over a 
iiame at the bottom of a letter. 2 Russel, 319. 

A man may be guilty of forgery by making a false deed in his own 
name. Thus, if he make a deed of lands to one person, and after- 'aise deed in 

' ^ ' a man's own 

wards make a deed of the same lands to another,- and antedate the name, 
latter deed, it is forgery. — Ibid, 320. 

If a bill, or note, payable to A. B. , or order, get into the hands of 
a person of the same name as the payee, and such person knowing 



252 



LAW OF MAGISTRATES. 



Endorsing that he is not the payee in whose favour it was drawn, endorse it for the 
by a party cf purpose of possessing himself of the money, he is guilty of forgery. 
name. So is the uttering a note as the note of another, by a person of the 

same name, ibid, 321. 
Using a ficti- jj jg settled, that the makinjj of a deed, power of attorney, or other 

tious name. ' . . , 

instrument, which is the subject of forgery, in the name of a fictitious 
person, with a (hiudulent intent, is forgery. 2 Russel, 328. 

And it is immaterij,l whether any additional credit be gained by 
using the false name; for in Shephard's case, 2 East. P. C, 967, 
who drew a draft on a banker in a fictitious name, assumed by him 
for the purpose of fraud, and to avoid detection, it was held to be 
forgery, although the credit was given to him personall}'. 
Not necngsa- It is in no wa V material whether a forged instrument be made in 

ry that the ' .. , ■, t r i- ^• 

instrument such a manner, as that if it were genuine it would be oi validity or 

should be . 1 1 r 1 • 111 • /• 

valid. not, yet it seems that the lalse instrument should carry on its tace 

some semblance of that for which it is counterfeited, and should not 
be illegal in its very frame. — 2d Russ., 345. 

A mere literal mistake, as in the name of the party, or leaving out 
the christian name, or using a wrong one, or the omission of endorse- 
ment of the payee, will make no difference; but it will b-^^ forgery to 
falsely make d bill Avithout the name of a payee, — Ibid, 344. 

So it will not be forgery to make ond utter a note, whi-^h, for want 
of a signature, is incoj.iplete, or to falsely make a will attested by only 
ten witnesses. 2 East. P. C, 954. 

But if the instrument falsely made, be only not available by reason 
of some collateral objection, it is forgery. 2 East. P. C, 852. 

Sd. Of the Intenf to Defraud. 
The intention to deceive and defraud, constitutes the chief ingre- 

Need be no _ ° 

actuaiinjury. (Jients of this offence of forgery; yet it is immaterial whether any 
person be actually defrauded, provided that he may have been preju- 
diced by the act done. 1 Haw. P. C.,c. 70, s. 11. 

But although to constitute forgery there must be an intent to defraud, 
still there need not be an intent to 'lefraud any particular person, but 
a general intent to defraud is sufficient; and if a person do an act, 
the probable consequence of which is to defraud, it will, in contempla- 
tion of law, constitute a fraudulent intent. 2 Russel, 353. 

The intention to defraud being necerssary to constitute forgery, he 
is not guilty of this offence, who writes another man's name to a deed 
in his presence, and by his command. — Ibid, 355. 



Nor com- 
plete. 



General 

intent 

Eufficient. 



Writing 
another's 
name by 
command* 



LAW OF MAGISTRATES. 



253 



Ath. Punishment. 
By Act of 184.'^, p. 34L \n cases where the punishment of forgery, ^v nipping, 
or of cl unterfeiting, was death wilhout benefit of clergy, the said j^pJi^n. 
punishment is abolished, and in lieu thereof, the party convicted is"'*"^" 
subject to a whipping of thirty-nine lashes, and to imprisonment of 
not less than one or more than seven years, and tri a fine at the dis- 
cretion of the judge who may try the case. This punishment is there- 
fore to be inflicted in cases of forgery, under the statutes of this State, 
except the forg ry of a pedlar's licence, in which case the punishment 
is a forfeiture of £400, current money, equal, (according to James,) 
to $240, and such oilier pains and penalties as may be inflicted for 
forgery at common law. 

The following is a table of the punishments affixed by act of Con- 
gress to various kinds of forgery. 

Offence, Punishment. 

The forping of any r cord Fine not exceeding five thousand 

or proceeding in any Court dollars, imprisonment not exceeding 
of the United States, 



Of any certificate ofcitizen- 
ship, 



Of pry deed, power ofattor- 
ney, &c., for receiving mo- 
ney from the Lrnited States, 



Ofany treasury note orother 
public security of the ' United 
States, or any letter of attor- 
ney, or authority, to convey 
any share in the public stock, 
Of an abstract or official 
copy, or certificate of regis- 
try of a vessel, or a licence 
for coasting, or fishing, or 
any official document granted 
by a collector, 



seven years, and whipping, not ex- 
ceeding thirty-nine stripes. 

Imprisonm.ent, not less than three 
nor more than five years, and fine not 
less than five hundred, or more than 
a thousand dollars. 

Imprisonment and hard labour, not 
less than one or more than ten years: 
or imprisonment, not exceeding five 
years, and fine, not exceeding one 
thousand dollars. 

The party deemed guilty of felony, 
and subject to fine, not exceeding five 
thousand dollars, and to imprisonment 
and confinement, to hard labonv, not 
exceeding ten years. 

By fine, not exceeding one thou- 
sand dollars, and imprisonment and 
confinement to hard labour, not 
exceeding three years. 



254 LAW OF MAGISTRATES. 

Offence. Punishment. 

Of a consular certificate. Adjudged guilty of felony, and fined 

not exceeding ten thousand dollars, 
and imprisoned for a ternrnot exceed- 
ing three years. 

bth. Requisites of the Affidavit, <§'c. 
Affidavit. 
The affidavit should contain the pames of all the parties, in full, viz: 
the name of the person forging, altering, or uttering, of the person 
whose name is forged, and of the person to whom the forged instru- 
ment was offered or given, the time and place of the forgery, or utter- 
ing, and a copy of the instrument forged or uttered. 

Wakrant. 
The warrant does not differ from the precedents, given in other 
cases before treated of. It should recite so much of the affidavit as is 
necessary to shew the offence. 

Recognizance. 
The recognizance must not be in a less sum thin the heaviest 
amount of fine for the offence charged. Its condition must require 
the party charged to a-ppear at the Court of General Sessions of the 
district, where the offence is said to have bei^n committed, except in 
casfts of offence against an act of Congress, in wh'ch case, it should 
require his appearance at the Circuit or District Court of the United 
Stales. 



FREE PERSONS OF COLOUR. 

1st. Of their Rights, Privileges, and hov/ they may sue. 
2d. Of their Disabilities, Subjection, and Duties required 

OF them. 
3d. Of Offences, and their Trial. [See also. Slaves.] 
4th. Pen ALT V on persons obstructing the Law in relation to. 
5th. Precedents. 

\st. Of their Rights, (^"C. 

All negroes, mulattoes, and mestizoes, except such as were free at 
the passage of the act of 1740, are by thkt act declared to be and 
remain forever absolute slaves. Yet, those who have since acquired 



LAW OF MAGISTRATES. 255 

freedom, though they are classed with and subject to the same mode 
of trial as slaves are, still differ from them in many respects. 

They are entitled to their liberty, a special mode of trial beingr provi- Entitled to 

_ •' . ' r o I liberty. 

ded, in case ofan attempt to reduce them to slaver) ; and by Act of Assem- 
bly, 6th S. L., 574, any person guilty of forcibly taking one from the 
State, with intent to deprive him or her of liberty, is sulject to a fine 
of one thousand dollars, and imprisonment for twelve months; and 
such person actually selling such free person of colour, is subject to 
receive, in addition to such fine and imprisonment, thirty-nine lashes 
on the bare back. 

And by Act of 1820, 7th S. L., 460, a person bringing into this 
State a free person of colour, and holding the same a sa slave, or selling, 
or offering to sell the same, as a slave, is liable to a penalty of one 
thousand dollars, over and above the damages which such free person 
may recover. 

They are capable of contracting among themselves and with white ]yj„ 
persons, though their contracts cannot be enforced at law, unless made •=°"'''^'''- 
in the presence of a white person, since a free person of colour will 
in no case be a competent witness. 

They may acquire title to property by descent or by purchase, and ^^yj^e 
may alien or transmit the same to their heirs; and in this respect their vtopeny. 
condition seems to be superior to an alien, for an alien, though he 
may acquire title to land, by purchase, yet, he cannot, by descent, nor 
can he transmit the same to his heirs: yet, a free person of colour, 
though he can never become a citizen, may yet hold land to himself and 
his heirs forever. 

They may sue and be sued in the usual form, in all cases except 
where their right to freedom is in issue, in which case, by Act of 
Assembly of 1740, 7th S. L., 398, the action is by guardian, in the 
nature of ravishment of ward, and the defendant may be required, 
pending the action, to enter into recognizance with one or more 
sufficient sureties, in such sum as the Court of Common Pleas may 
direct, conditioned that he shall produce the said ward, and not eloin, 
misuse, or abuse him or her, during the continuance of the suit. 

2d. Of their Disabilities, Subjection, (Sfc. 
Every free male negro, mulatto, or mestizo, above the age of fifteen j^^^^ have a 
years, is compelled to have a guardian, who is a respectable free- guardian. 
holder of the district where such free person resides. The said 
guardian is required to go before the clerk of the Court of the district, 
and signify his acceptance of the trust in writing, and also give to the 



2M LAW OF MAGISTRATES. 

said clerk his certificate, that the said free person is of good character 
and correct habits; which acceptance and certificate, the clerk is 
required to record, and for the same is entitled to a fee of fifty cents; 
and if any such free person is unable to conform to the above requisi- 
tions, such person shall be dealt with as a person of colour, coming 
into the State contrary to law. 7th S. L., 462. 
Not a They are not competent witnesses, in any case, in a Court of 

witness. Kecord, even if both parties to the suit be of the same class with 
them; nor can book entries, made by a free negro, be received in 
evidence on the oath of a white person, to th^ir hand writing. Gro- 
ning vs. Devana; 2 Bail., 192. 
pjfsoi!^ ^ ^^^ they may take the oath required by the prison bounds act, in 

bounds oath. ^^^^^ ^^ ^^^^-^^ j^j^ (jjscharge. Glenn vs. Lopez, Har., 105. 
May be sold They are subject to a capitation tax, and by the various acts enacted 
from year to year, and finally enacted generally by Act 1843, page 246, 
the tax collector is authorized to issue his execution against all such 
free negroes, mulattoes, or mestizoes, as shall neglect or refuse to pay 
the tax imposed by law, directed to the sheriff of this State, requiring 
them to sell for a term, not exceeding one year, the services of such 
persons, to meet the payment of the tax imposed. But the sheriff is 
not authorized to sell lor a term longer than is necessary, to pay the 
taxes and costs. 
Liable to By Act of 1841 , page 200, each commander of a division, brigade, 

duty!*^ regiment, squadron, battalion, or beat company, shall respectively, 
have power to order out all male free negroes, moors, mulattoes, and 
mestizoes, between the ages of eighteen and fort}' -five years, residing 
within the limits of their respective commands, to perform such labour 
as fatigue men, as shall be deemed necessary for military purposes; 
and if any, so summoned, shall fail to obey such officer, or shall refuse 
to perform the work required of him, he shall be fined two dollars and 
fifty per cent, on his last general tax, for each day he shall fail to 
attend, or refuse to do such work; but no one shall be compelled to 
perform more than ten days fatigue work in one year. 
May not be gy ^ct of 1834, page 469, any person who shall employ as a 
clerks. clerk, or salesman, in or about any store, shop, or house, used for 
trading, any slave, or free person of color, he shall be liable to be 
indicted therefor, and upon conviction, shall be fined for each offence, 
not exceeding one hundred dollars, and to be imprisoned, not exceed- 
ing six months. 

2d. Of their Offences, Trial, <^c. 
Enteringy or returning, after having left the State. 



LAW OF MAGISTRATES. 257 

By Act of 1835, 7 S. L,, 470, all free negroes, or free persons of 
■ color, are forbidden to enter the State by land or water, or to return 
after having left the State; and in case any free negro or person of 
color (not being employed onboard a vessel) enter tha State contra- Modeof 
ry to law, any white person may seize and convey him or her before ' 
any magistrate of the district or pari-h, who is aut.iorized to commit 
or hold to bail such peison, and to summon three (by Act of 1839, 
five) freeholders, and form a Court, as for the trial of free persons of 
color, within six days after his or her arrest; and if such person be 
convicted of entering the State, or of returning after having left, the 
said magistrate shall order him or her to leave the State, and to com- 
mit to prison him or her, until such time as he or she can leave, or 
the magistrate may take bail for the departure of such free person 
within fifteen days. 

Every free person of color so bailed and ordered to leave the State , ppj^g, j.^^. 
who shall not leave within the time prescribed, or who, having left "°"^^^'"e' 
the State after conviction as aforesaid, shall return into the same, 
shall lie arrested and committed to close prison, and upon proof before 
a Court, constituted as aforesaid, of his or her having failed to leave 
the State, or of having returned after leaving, he or she shall be sub- 
jected to such corporal punishment as the said Court shall see fit to 
order. — lb 

And if, after such punishment, such free person of color shall still 

•^ ' ' Penalty for 

remain in the State longer than the time allowed, or shall return after returning 

. ^ . _ _ after punish- 

leaving, such person, on conviction before a Court, constituted as meat 
aforesaid, shall be sold at public sale a? a slave, one half the proceeds 
to the State, the other to the informer. — lb. 

If any free person of color shall enter this State in employment^ . . 

•' r r J Entering In 

on board a vessel, from any other State or foreign port, the sherifToft'^e ^t^p'oy 

, of any vessel. 

the district, where such vessel arrives, is required to apprehend such 
free person of color, and confine him or her closely in a jail,, until 
such vessel is ready to proceed to sea; then the captain of the said 
vessel is bound to carry away such free person of color, and pay the 
expenses of his or her detention. And the sherifi^, on apprehend- 
ing such free persons of color, shall compel the captain to enter into 
recognizance with good and sufficient security, in the sum of one 
thousand dollars for each free person of color in his employ; condi- 
tioned, that he will comply with the foregoing requisitions; and in 
case of his neglect, refusal or inability to do the same, he shall be 
compelled by the sheriff" to haul his vessel into the stream, one hun- 
dred yards from the shore, and remain until said vessel shall proceed 
33 



258 



LAW OF MAGISTRATES. 



to sea. And if he shall not haul off his vessel within twenty-four 
hours after said order, he shall be indicted therefor, and on conviction, 
forfeit and pay one thousand dollars, and suffer imprisonntient not 
exceeding six months. — lb. 

By Act of 1844, p. 293, free persons of color arrested by the 
sheriff" under the above act, are deprived of the benefit of habeas cor- 
pus, and in case the sheriff^ shall be unable to enforce the above act 
by means of the posse comitalus, and tiie civil authorities usually at his 
command, he is authorized to call upon the Governor, who is required 
to order out a sufficient number of the militia of this State, and place 
them under discreet officers, with orders to assist the sheriff", 
^o^g It shall be the duty of the sheriff^, during the confinement of such 

jnstice^ ^'^ ^ free person of color, to call upon some justice of the peace or quorum, 
to warn such free person never to enter the State after departing 
therefrom; and the said justice shall insert the name of such tree per- 
son in a book, provided by the sheriff", and shall therein specify his or 
her age, occupation, and distinguishing mark!=; which book shall be 
evidence of such warning. And said book shall be a public record, 
and open to the examination of all persons, and shall be deposited in 
the office of the clerk of general sessions. And for his services, the 
justice shall receive from the captain of the vessel two dollars; and 
every person so warned, who shall not depart from the State, or hav- 
ing departed shall return, shall be dealt with as is directed, with 
regard to persons of color who shall migrate into this State. 7 S. L. 471. 
Exceptions. All free negroes arriving in this State by shipwreck or stress of 
weather, or employed in any vessel of the United States, or other 
power in amity with the United States, are exempt from the operation 
of this act. But in case of shipwreck, they may be arrested and con- 
fined, and required lo leave the State within thirty days after such 
shipwreck. And in the latter case, they are liable to the operation 
of the act, if found on shore after being warned by the sheriff^, or his 
deputy, to keep on board their vessels. — lb., 473. 

By Act of 1823, 7th S. L.,465, prosecutions for the before-mention- 
ed off'ences may be maintained without limitation of time. 



No limita- 
tion. 



2d. Circulating Seditious Papers. 

If any free person of color shall be convicted of having directly or 
indirectly circulated, or brought within this State, any written or prin- 
ted paper, with intent to disturb the peace or security of the same, in 
relation to the slaves thereof, he or she shall, for the first off"ence, be 
sentenced to pay a fine not exceeding one thousand dollars, and for 



LAW OF MAGISTRATES. 259 

a second offence, shall be whipped not exceeding fifty lashes, and be 
banished from the State; and if he or she return from such banish- 
ment, without unavoidable accident, he or she shall suffer death, with- 
out benefit of clergy. 7th S. L., 460. 

By Act of t835, 7th S. L., 474, no free negro, or other free person 
of color, shall carry any fire-arms, or other military or dangerous 
weapons, abroad, except with a written ticket from his or their guar- 
dian, under the pain of forfeiting the same, and being fined or whipped 
at the discretion of any magistrate, and three (by Act of 1839, five) 
freeholders, before whom he or they ma^ be convicted thereof. 

4th, Penalty on persons obstructing, etc. 
Any person or persons, who shall on his, her, or their own behalf, offenders 

, , ... ,. .. .^ •. r- from abroad, 

or under color, or in virtue ot any commission or authority from any how dealt 
State, or public authority of any State in this Union, or of any foreign 
power, come within the limits of this State, for the purpose, or with 
intent to disturb, counteract or hinder the operation of such laws and 
regulations as have been, or shall be made by the public authorities 
of this State, in relation to slaves or free persons of color, such per- 
son or persons shall be deemed guilty of a high misdemeanor, and 
shall be committed for trial to the common jail of the district, by any 
one of the judges of the Courts of law or equity, or the recorder of 
the city of Charleston, unless admitted to bail by the said judge or 
recorder; and upon conviction thereof by any Court of competent 
jurisdiction, shall be sentenced to banishment from the State, and to 
such fine and imprisonment as may be deemed fitting by the Court 
which shall have tried such offence. Acts 1839, p. 292. 

Any person within this State, who shall at any time accept any^- 
commission or authority from any State, or public authority of any J''''i'n "le 
State in this Union, or from any foreign power, in relation to slaves 
or free persons of color, and who shall commit any overt act, with 
intent to disturb the peace or security of this State, or with intent to 
disturb, counteract, or hinder the operation of the laws or regulations 
of the public authorities of this State, made, or to be made, in rela- 
tion to slaves or free persons of color, such person shall be deemed 
guilty of a misdemeanor, and upon due conviction thereof before any 
competent Court, shall be sentenced to pay, for the first offence, a fine 
not exceeding one thousand dollars, and to be imprisoned not exceed- 
ing one year; and for the second offence, he shall be imprisoned for 
seven years, and pay a fine of not less than one thousand dollars, or 
be banished from the Stale, as the Court shall see fit. — lb. 



260 I. AW OF MAGISTRATES. 

Governor to The Governor, for the time being, shall require any person or per- 

eignoflen- sona. vvho shali or may have come within the limits of this State, on 

ders to leave 

the Slate, his, her, or their own behalf, or under color, or in virtue of any 

commission or authority from any State, or public authority of any 
State in this Union, or from any foreign power, having relation to the 
laws or regulations of this State, on the subject of slaves or free per- 
sons of color, to depart from the limits of this State within forty-eight 
hours after such notice, and such person shall thereupon be bound to 
depart; and in case of his neglect or refusal so to depart, as aforesaid, 
the said person shall be deemed guilty of a high misdemeanor, and 
shall be committed by the same authority herein before stated, for 
trial, to the common jail of the district, unless admitted to bail as 
herein before stated; and upon due conviction before any Court of 
competent jurisdiction, shall be sentenced to be banished from the 
State, and to such fine and imprisonment as the Court shall think expe- 
dient. — lb. 
Penalty for Any person, who shall be convicted a second, or any subsequent 
offence. time, under the provisions of the first or third sections of this Act, 
shall be imprisoned for a terra not less than seven years, and shall 
pay a fine of not less than one thousand dollars, and shall, in addition 
thereto, be banished from the State. — lb. 

It shall be the duty of the sheriff of the district to see that any sen- 
^"enfl^ ' * tence of banishment be duly executed, and that the offender be sent 
without the limits of the State; and in case any person so banished 
shall return within this State, (unless by unavoidable accident,) the 
sheriff of the district, when he may be found, shall hold him in close 
confinement under the original sentence, until such offender shall 
enter into recognizance before the clerk of the Court, with sufficient 
sureties, to comply with the terms of the said sentence, and forever 
to remain without the limits of this State. — lb. 

bih Precedents. 

Recognizance of Free Persons entering the State. 

State of South-Carolina. 

Be it remembered, that on the day of in the year of our 

Lord one thousand eight hundred and , personally appeared A. B., 
a free person ofcolor, and C. D., before me, magistrate, in and 

for the said State, who acknowledged themselves indebted to the 
State of South-Carolina, that is to say, the said A. B., in the sum of 
dollars, and the said C. D. in the sum of dollars, like money. 



LAW OF MAGISTRATES. 261 

to be levied of their separate lands and tenements, goods and cn^ttels, 
respectively, to and for the use of the said State, if the above men- 
tioned A. B. shall fail in the performing the condition underwritten. 
The condition of this recognizance is such, that if the said A. B., 
who has entered the State contrary to law, shall depart from and 
without the limits of the State, within fifteen days from the date 
hereof, and in the mean time do keep the peace of the State, and be 
of good behaviour towards all the citizens thereof, then this recogni- 
zance to be null and void, or else to remain in full force and virtue. 
Taken and acknowledged the day and } 
year above written, before me, ^ 
E. F., 

Magistrate. 

A. B. [l. s.] 

C. D. [l. s.] 

Recognizance of Captain or Commander. 
(Commencement as in the preceding. Penalty, one thousand dollars 
for each free person of color.) 
The condition of this recognizance is such, that if the said A. B., 
captain of , who has brought into this State C. D., a free 

person of color, shall, on the sailing of the said vessel, carry away 
from and beyond the limits of this Slate, the said C. D., and shall 
pay the expenses of the arrest and detention of the said C. D., then 
this recognizance to be null and void, or else to remain in full force 
and virtue. 
Taken and acknowledged before me, ^ 
the year and day above written. ^ 
E. F., 

Magistrate. 

A. B. [l. s.] 

Surety, [l. s.] 



FRUIT TREES. 

By statute 37, H. 8, c. 6, 2d S, L., 478; If any person or persons penalty for 
maliciously, willingly, or unlawfully, bark any apple trees, pear trees, "'•'""''^" 
or other fruit trees, of any other person or persons, every such offender 
ar.d offenders shall not only lose and forfeit to the party grieved, treble 
damages for such offence or oflfences, the same to be recovered by 
action of trespass, at the common law, but also shall lose and iorfeit 



262 LAW OF MAGISTRATES. 

to the State, for every such offence, ten pounds sterling, in the name 
of a fine. 



FUGITIVES FROM JUSTICE. 

Must be ^y ^^® Constitution of the United States, Act 4th, sec. 2d, a person 

surrenderwi charged in any Stare with treason, felony, or other crime, who shall 
flee from justice and i>e found in another State, shall, on demand of the 
executive authority of the State from which he fled, be delivered up, to 
be removed to the State having jurisdiction ofthe crime. 
Maybe In the case of the State vs. Anderson, 1 Hill, 327, it was held, that 

before^ a person charged with treason, felony, or other crime, in one State, 
deman . ^^^ fleeing to another, may, before demand made on the Governor, be 
arrested in the State in which he is found, for the purpose of being 
surrendered to the State from which he fled, either by warrant from a 
magistrate, or by private persons without a warrant; and such persons 
may justify the arrest, by shewing that the prisoner has committed, or 
stand,? charged with a felony, or other crime, in another State; and the 
same rule applies to fugitives from a foreign nation. 
Doubtful in In the case of Miller vs. Grice, 2 liichardson, 27, the judge below 
inisdeiiiea- (]g(.jf|pj, ^)^.^{ ^}jjg x\g\\\. to arrest does not extend to cases of misde- 
meanor, but the Court-above neither sustains nor overrules the point. 



nora 



GAMING. 

[See Lotteries.] 

The statutes against gaming, which are of force in this State, are 
16th Ch. 2,c. 7; 2 S. L., 517; 9th Anne, c. 14; 2 S. L., 565; Act 
of 1791, 5th S. L., 178; Act of 1802, 5th S. L., 432; the Act of 
1815, 6th S. L., p. 27; and a special Art relating to Columbia, 6th 
S. L., 553. The enactments whereof may be considered under the 
following heads. 

1st. Of what Wagers are void. 

2d. By whom, and how Money won at Gaming may be reco- 
vered back. 



LAW OF MAGISTRATES. 263 

3d. Of the various offences under these Statutes, and 

THEIR Punishment. 
4th. Of the Powers of a Magistrate for the prevention of 

Gaming. 
5th. Precedents, 

Isi. Of Void Wagers. 

By statute 16th Ch. 2, c. 6; If any person or persons play at any 
ganne or games whatever, and shall bet on the side or hands of such 
as do play, and shall lo«e any money or thing, exceeding the sum of 
one hundred pounds upon ticket, credit, or otherwise, and shall not pay 
down at the time, the part}-^ that so loseth shall not be compelled to 
pay or make good the same; but the contracts, judgements, statutes, 
recognizances, mortgages, conveyances, ussurancies, bonds, bills, 
specialties, promises, covenants, agreements, and other acts, deeds, 
and securities, whatsoever, which shall be entered into for the same 
or any part thereof, shall be utterly void, and of none effect. 

The statute 9 Anne, c. 14, 2 S. L. , 565; Without limit as to 
amount, makes void, all notes, bills, bonds, judgements, mortgages, or 
other securities or conveyances, whatsoever, where the whole or part 
of the consideration of the same is ifor money, or other valuable thing, 
won by playing at cards, dice, or other game, whatsoever, or by 
betting on the hands of such as do game, or for money knowingly 
lent for such secret gaming, or at the time and place of such play, to 
any person so gaming. But, inasmuch as this statute does not also am notes, 
make void, "all contracts, promises, and agreements," as does the ' 
statute of 16 Ch., it hath been doubted whether a sum less than the 
one hundred pounds, won at such ganie, may not be recovered on a 
parol contract, or promise to pay. But in the case of Corley vs. 
Berry, 1 Bail., 593, it was settled that by the spirit of the statute, all 
cor.tracts upon a wager, above ten pounds, were void, inasmuch as 
such wager, if paid, might, under the statute, be recovered back; and 
in the same case, it was held, that a wager on a horse race, was 
included in the terms, ''any game or games, whatsoever." 

The statute of 1791, re-enacts the statute of 9lh Anne, and includes 
by name, cock-fighting and horse racing. 

2d. Wherif and by whom money won, may he recovered hack. 

By statute, 9th Anne, c. 14, 2d S. L., 465; Any person who shall, 
at any time, or sitting, by playing at cards, dice, table, or other game 
or games, whatsoever, or by betting on the hands of such as do play, 



264 LAW OF MAGISTRATES. 

lose to any one or more persons, in the whole, the sum of ten pounds, 
and shall pay or deliver the same, or any part thereof, the person so 
losing, shall be at liberty, within three months, to sue for and recover 
the same from the winner; and if the loser does not sue M'ithin the 
time aforesaid, and with effect prosecute for the money, oi other thing, 
by him so lost, then it shall be lawful for any person to sue for and 
recover the same, and treble the value thereof, one moiety to the 
person who shall sue, and the other to the poor of the parish. 

Sd. Of the various Offences under these Statutes, and their Pun- 
ishment. 
If any person shall, by any fraud or shift, cousenage, circumvention, 
deceit or unlawful device, or ill practice whatsoever, in playing at 
cards, dice, table, or other game whatsoever, or by bearing a part in 
the stakes, wagers or adventures, or in betting on the hands of such as 
do play, win, obtain, or acquire to themselve?, or to any others, any 
sum of money or other valuable thing whatsoever, and being convicted 
thereof, upon indictment, or information, he shall forfeit five times the 
value of the sum of money, or other thing, so won as aforesaid, and 
shall be deemed infamous, and suffer such corporal punishment as in 
cases of wilful perjury. Any person winning more than ten pounds 
at a sitting, is subject to the same penalty, except the corporal punish- 
ment. 2d S. L, 567. 

If any person shall play at any tavern, inn, or store, for the retailing of 
any^'avern spirituous liquors, or in any house, used as a place for gaming, or in 
*"'■ any barn, kitchen, stable, or other out house, or in any street, high- 

way, Oi in any open wood, high-way, race-field, or open place, at any 
game, or games, with cards, or dice, or any gaming table, commonly 
caiied A. B. C, or E. O., or distinguished by any other letters or 
figures, or roley poley table, or at rouge and noir, or at any faro bank, 
or at any other table, or bank of the like kind, under any denomination 
whatever, (except the games of billiards, bowls, backgammon, chess, 
draughts, or whist, when there is no betting,) or shall bet on the sides 
of such as do game, upon being convicted by indictment, shall be impri- 
soned, not exceeding twelve months, and forfeit a sum not exceeding 
five hundred dollars, one half to the use of the informer, the other to 
the State. 

Every person keeping such tavern, inn, retail store, or public place, 

of'such^^^' or house, used as a place for gaming, or such other public house, 

chargeable shall, upon conviction, be imprisoned not exceeding twelve months, 

and forfeit a sum not exceeding two thousand dollars for each and 



LAW OF MAGISTRATES. 265 

every offence, one half to the use of the informer, the other half to the 
State. 6th S. L., 27. 

Any person who shall set up, keep, or use any gaming table, com- Penalty far 
monly called A. B, C, or E. O., or known or distinguished by any gaming 
other letters or figures, or roley poley table, or table to play at rouge 
and noir, or any faro bank, or any other gaming table or bank for the 
purpose of gaming, (except billiards, bowls, chess, draughts and back- 
gammon) upon being convicted thereof, upon indictment, shall forfeit a 
sum not exceeding five hundred, nor less than two hundred dollars. — lb. 

Upon conviction of any person, by virtue of this act, the Court Offender 
before whom such conviction shall take place, is hereby required to commitied 

I m 1 • M f -1 !• until penalty 

commit such oiiender to the common jau for a period not exceed>ng ispaid. 
twelve months, unless the fine imposed and costs be sooner paid. — lb. 
28. 

No corporation or persons, having power to grant licenses for the Ljggpgetobe 
retailing of spirituous liquors, shall grant such license to any person withheld, 
convicted of any of the offences created by this act; and such license 
is hereby declared null and void, and shall not be received in evidence 
upon an indictment for retailing spirituous liquors without a license — lb. 

All and every sum of money staked, betted, or pending on the event ^^^ 
of any such games, is hereby declared to be forfeited, one half to the s'a''?''> 
State, and the otherhalf to the informer, or person seizingthe same — lb. 

All poisons who might be subiected to the penalties imposed by i"f°""er 

' ^ ° - "^ r J exonerated. 

this act, either for gaming or keeping a gaming table, shall, upon 
being permitted by the attorney, or any solicitor, to become evidence 
in behalf of the State, be freed from the same, and be entitled to one 
half of the lines recovered upon his information. — lb. 

If any person shall, within ten miles of South-Carolina College, Penalty for 
keep, or assist in keeping, any house for gaming, or any faro bank, paming 

I 1 ■ r- • 1 I 11 1 11 • house near 

or other device for gaming, he shall be proceeded against as a va- souih-caro- 
grant, and upon conviction, shall enter into recognizance to the State 
in the sum of two thousand dollars, with two good and sufficient sure- 
ties, (who shall be freeholders) in the sum of oue thousand dollars 
each, to be taken and approved before the clerk ,fthe Court of Rich- 
land district ; cor.d.uoned, not to offend against lio provisions of this 
act for the space of three years, or in default thereof shall forthwith 
be committed to the jail of the district, to be dealt with as a vagrant ; 
and for every offence, after having given such bond on conviction, he 
shall be fined not exceeding one thousand dollars, and be imprisoned 
not exceeding twelve months. 6th S. L., 555. 
34 



266 



LAW OF MAGISTRATES. 



Two magis- 
trates to 
cause those 
who seem to 
live by 
gaming, to 
tind sureties 
for good 
behaviour. 



Howoffen- Any magistrate is hereby required, upon the written requisitions of 
proseifuted! the faculty of South-Carolina College, through their presiding officer, 
or of the solicitor of the circuit, suggesting the name of any offender 
against the provisions of this act, and any witnesses, necessary to the 
investigation, forthwith to issue warrants, to bring before him such 
offender and witnesses; and if, upon investigation before such magis- 
trate, he be satisfied that further proceedings are warranted, a Court 
shall be organized, as in other cases, for the trial of vagrants, before 
which such offender shall be tried and dealt with as hereinbefore 
directed. — lb. 

4//j. Of the power of a Magistrate to suppress Gaming. 

Any two or more magistrates may cause to come, or be brought 
before them, every such person, within their respective limits, whom 
they may have just cause to suspect to have no visible estate, profes- 
sion or calling, to maintain themselves by, but do, for the most part, 
support themselves by gaming; and if such persons do not make it 
appear to such magistrates, that the principal part of his or their 
expenses is not maintained by gaming, that then such magistrates 
shall require of him or them sufficient sureties for his or their good 
behaviour, for the space of twelvemonths; and indefault of his or their 
finding such securities, to commit him or them to the common jail, there 
to remain until he or they shall find such securities as aforesaid. 

And if such person so finding securities as aforesaid, shall, during 
the time for which he or they shall be so bound to their good behaviour, 
at any one time or sitting, play or bet for any sum of money or other 
thing, exceeding in the whole the value of twenty shillings, that then 
such playing shall be deemed or taken to be a breach of his or their 
behaviour, and a forfeiture of the recognizance given for the same. 
2 S. L., 567. 

It shall and may be lawful for any magistrate, by warrant under 
his hand, to order to be seized, and publicly burnt or destroyed, any 
of the gaming tables, commonly called A. B. C, or E. O., or any 
other table distinguished and known by any other letters, or by any 
figures, or any other gaming tables of the same or like kind, under any 
other denomination whatsoever; and the keeper thereof shall be deemed 
and treated as vagrants. 5th S. L., 433. 

Any State magistrate, on information by oath of any credible wit- 
ness, of gaming being carried on, or a gamingtable kept in any house, 
is authorized to grant his warrant, under hand and seal, to break 



Playing for 
more than 
twenty 
shillings, a 
breach of 
bond. 



Magistrate 
authorized to 
seize and 
bum gaming 
tables. 



Keepers 
deemed 
vagrants. 

Suspected 
houses may 
be forcibly 
entered. 



LAW OF MAGISTRATES. 267 

open and enter any closed doors or rooms, wherever the said offences 
are alleged to prevail. 6th S. L., 28. 

For power of Magistrates under the College Act, see Supra. 

^th. Precedents. 
Affidavit for Gaming. 

State of South-Caeolina, > 
District. ^ 
Personally appeared before me, A. B., magistrate in and for the 
said district and State, C. D., who being duly sworn, deposes and 
says, that E. F., on the day of at {here describe the place, 

whether tavern, house, field, or otherwise,'] in the district and State 
aforesaid, at a certain game, \liere describe the game played at, whether 
with cards, dice, or if at a gaming table, by setting out the letters, 
figures, or name by which such table is knowii] with one G. H., did 
play and bet, and did win from him, the said G. H., a large sum of 
money, to wit, the sum of dollars, and that A. C. and B. D. 

are material witnesses thereto. 

C. D. 
Sworn to before me this > 
day of 18 S 

A. B., 

Magistrate. 

Same for keeping a House for Gaming. 

State of South-Carolina, > 
District. 5 

Personally appeared before me, A. B., magistrate in and for the 
district and State aforesaid, CD., who being solemnly sworn, depo- 
ses and says, that E. F. did on the day of in the district 
and State aforesaid, at [here describe the place, where, as in giving 
the name of the street, village, neighbourhood, public road, etc.,] keep 
a certain [here set forth the hind of place kept, whether tavern, retail 
store, or public house] and that said [tavern or inn] was, on the day 
and year aforesaid, used as a public place for gaming, viz., one E. B. 
and A. C. then and there did play and bet at a certain game, [here 
set forth the kind of game played at] and that B. D. and E. O. are 
material witnesses thereto. 

CD. 
Sworn to before me, this \ 

day of A. D.,18 \ 

A. B., 

Magistrate. 



268 LAW OF MAGISTRATES. 

Same against a person keeping a Gaming Table. 

State of Soutk-Carolina, } 
District. 3 

Personally appeared before me, A. B., magistrate in and for the 
district and State aforesaid, C. D., who being solemnly sworn, deposes 
and says, that E. F., on the day of at [here give the name 

of the town, village, street, neighbourhood, C' ther description of the 
place^ in the district and State aforesaid, d '• set up, keep, and use, a 
certain gaming table, commonly called [here describe the table by its 
name, letters or figures^ for the rnrnose of gaming, and that B. C. and 
E. O. are material witnesses to prove the said charge. 

CD. 

Sworn to before me, this > 

day of A. f.*., 18 \ 

A. B., 

Magistrate. 

Warrant to arrest persons for Gaming, or keeping a Gaming 
House or Table. 

State of South-Carolina, > 
District. ^ 

By A. B., magistrate, in and for the said State. 
To any lawful Constable. 
Whereas, complaint ( non oath has been made before me, by C. D., 
that E. F., [here state iheofence, as in the above affidavitsY. These are 
therefore to authorize an., require you to arrest the said E. F., and 
bring him before me, to be dealt with according to law. Given under 
my hand and seal, this day of A. D., 18 

A. B. [1. s.] 
Magistrate. 

Warrant by two Magistrates to arrest persons having no Visible 

Estate. 

State op South-Carolina, > 
District. ^ 

By A. B. and CD., Magistrates in and for the said State. 
To any lawful Cohi^table. 

Whereas, we have just cause to suspect 'hat E. F. hath no visible 
estate, profession or calling, to maintain himself by, but doth, for the 
most part, support himself by gaming. 

These are therefore to authorize and require you to arrest the said 



LAW OF MAGISTRATES. 269 

E. F-, and bring him before us, to be dealt with according to law. 

Given uno'^r our hu;iL.;i and seals, this day of A. D., 18 

A. B. [l. s.] 

Magistrate. 

C. D. [l. s.] 

Magistrate. 

Recognizance of one Gaming, or keeping a Gaming House or 
Table. 

The State of Softh-Carolina. 

Be it remembered, that on the day of , in the year of our 
Lord one thousand eight hundred and , personally appeared E. F., 
and [tiame or names of surety or stireliesl before me A. B., magis- 
trate, in and for the said State, who acknowledged themselves inder tad 
to the State of South-Carolina; that is to say, the said E. F., in the 
sum of \if the offence charged, he for gaming, the penalty must rot he 
for less than five hundred, and if for keeping a gaming house or 
table, not less than two thousand dollars] dollars, and the said [^surety.'\ 
in the sum of [^same as above'] dollars, like money, to be levied of 
their separate lands and tenements, goods and chattels, respectively, 
to and for the use of the said State, if the above mentioned E. F. shall 
fail in the performing the condition underwritten. 

The condition of this recognizance is such, that if the said E. F. 
shall personally appear before the Court of General Sessions, to be 
holden at the usual place of judicature, in , on the Monday 

in , then and there to answer to a bill of indictment to be prefer- 

red against him for igaming, or keeping a gaming house, or table,] 
and to do and receive what shall be enjoined by the Court, and not to 
depart the Court without license: and in the mean time, that the said 
E. F. do keep the peace of the State, and be of good behaviour 
towards all the citizens thereof, and especially, shall not game or keep 
a gaming house, then this recognizance to be null and void, or else to 
remain in full force and virtue. 

Taken and acknowledged the day and } 
year above written, before me, \ 

A. B. 

Magistrate. 

E. F. [l. s.] 

(Surety,) [l. s.] 



270 LAW OF MAGISTRATES. 

Recognizance before two Magistrates, hy persons having no 
• Estate or Profession. 
State of South-Caroliina; 

Beit remembered, that on the day of , in the year of our 

Lord one thousand eight hundred and , personally appeared E. F., 
and (sufficient surety or sureties,) before us, A. B. and C. D., magis- 
trates, in and for the said State, who acknowledged themselves indebted 
to the State of South-Carolina; that is to say, the said E. F., in the 
sum of five hundred dollars, and the said surety in the sum of five 
hundred dollars, like money, to be levied of their separate lands and 
tenements, goods and chattels, respectively, to and for the use of the 
said State, if the above mentioned E. F. shall fail in the performing 
the condition underwritten. 

The condition of this recognizance is such, that if the said E. F. 
do keep the peace of the State, and be of good behaviour towards all 
the citizens thereof, and especially that he shall not play at any game 
or games, or keep any gaining house or table, then this recognizance 
to be null and void, or else to remain in full force and virtue. 
Taken and acknowledged the day and 
year above written, before us, 

A. B. E. F. [l. 8.] 

Magistrate. 
C. D. (Surety,) [l. s.] 

Magistrate. 



HABEAS CORPUS. 

This writ lies, either at common law, in which case it may be 
granted by a judge, either in open Court, or at Chambers, to any 
person, whether infant or of full age, illegally restrained of his or her 
liberty, or by authority of the statute, 31 Ch., 2, c. 2, commonly called 
the Haheas Corpus Act, under which it is only grantable to persons 
confined for criminal or supposed criminal offences. 

According to the decision in Harvey vs. Huggins, 2 Bail., 252, 
magistrates have no power to grant Haheas Corpus at common law, 
but theii: powers are limited to cases provided for in the Act. We 
proceed to inquire, 

1st. What persons may have Habeas Corpus under the Act. 
2d. By whom, and when Grantable. 



LAW OF MAGISTRATES. 271 

3d. Of the Direction, Service, and Retur:i of the Writ. 
4th. Of the Hearing, Discharge, and Effect thereof. 
5th. Penalty for Neglect or Refusal. 
6th. Fees of Officer. 
7th. Precedents. 

1st. WJiat persons may have Habeas Corpus. 

All and every person, which now is, or hereafter shall be, within ah persons 
any part of this Province, shall have, to all intents, constructions benefit of 
and purposes whatsoever, and in all things whatsoever, as large, 
ample, and effectual right to, and benefit of, the act commonly called 
the Habeas Corpus, as if he were personally in the kingdom of 
England. 2 S. L., 400. 

By the 3d and 21st sections of the said Act, all persons, (other than persons 
persons convict, or in execution on legal process,) who stand com- ^"i'li'jef'' '"'^ 
mitted or detained for any crime, (unless for treason or felony, plainly ^^^p^'^'*^' 
expressed in the warrant of commitment, or accessary before the fact 
to petty treason or felony, or upon suspicion of petty treason or felony, 
or being accessary thereto before the fact, plainly and specially, in the 
warrant of commitment,) are entitled to Habeas Corpus. And since, 
by the Act of 1839, p. 14, all persons charged with felony are made 
bailable, (except where the punishment of the offence is death, with 
benefit of clergy,) it would seem that persons committed for a bail- 
able felony, would also be entitled to the benefits of the Habeas 
Corpus Act. 

If any persons shall have wilfully neglected, by the space of two 
whole terms, after his imprisonment, to pray a Habeas Corpus for his neglecting 
enlargement, such person shall not have any Habeas Corpus m vaca- terms, to 

r , . . have none in 

lion tmie, in pursuance oi this Act. vacation. 

2d. By whom, and when grantable. 

Any two magistrates are authorized and required to execute the 
provisions of an "Act for the better securing the liberty of the subject, magistrates; 
and for the prevention of imprisonment beyond seas, commonly called 
the '■'■Habeas Corpus Act;" and every matter, clause, or thing, therein 
contained, according to their true intei-est and meaning, as fully, 
effectually, and lawfully, as any judge of the Court of General Ses- 
sions or Common Pleas, or any Chancellor of this State. Act, 1839, 
page 15. 

Any of the Judges or Chancellors of this State are authorized, in 
vacation and out of term time, to grant an Habeas Corpus, under the 



272 



LAW OF MAGISTRATES. 



Anyjudgeor seal of the Court, whereof he shall then be one of the judges, to any 

chancellor -in • /iiir i\ . 

upon person committed tor crime, (other than beiore excepted,) upon view 

request.etc. of the copy or copies of the warrant or warrants of commitment and 
detainer, or upon oath made, that such copy or copies were denied to 
be given, by the person in whose custody the prisoner is detained, and 
upon request made in writing by the person detained, or any on his, 
or her behalf, attested and subscribed by two witnesses who were 
present at the delivery of the same.' 1 S. L,, p. 118, sec. 3. 

After the assizes are proclaimed for the county, where any prisoner 
is detained, no person shall be removed from the common jail upon 
any Habeas Corpus, granted in pursuance of this act, but upon any 
such Habeas Corpus, shall be brought before the judge of Assize in 
Cjjen Court, who is thereupon to do, what to justice shall appertain. 

Provided, nevertheless, that after the Assizes are ended, any person 
or persons detained, may have his, or her Habeas Corpus, according 
to the direction and intention of this act. — Ibid, 122. 



None during 
Assizes, 
except in 
open Court. 



Direction. 



Service. 



Return in 
three days. 



Judge or 
magistrate 
shall hear, 
etc. 



Sd. Of the direction, service, and return of the Writ. 

The writ is to be directed to the officer or officers in whose custody 
the party committed or detained shall be, and returnable immediately 
before the judge or other officer iss uing the same, and it shall be served 
upon the said officer, or left at the jail or prison with any of the under 
officers, under keepers or their deputy; and the said officer shall within 
ihree days after service thereof, mike return of such writ, and bring, 
or cause to be brought the body of the party committed or restrained, 
unto or before the person or persons before whom the writ is return- 
able, according to the command thereof, and shall then certify the 
true cause of his detainer, or imprisonment. 1st S. L., 117. 

If the place of imprisonment of the party be beyond the distance of 
twenty miles trom the Court, and not above a hunared miles, such 
person .shall be brought before the Court within ten days, and if beyond 
a hur^red miles, then within twenty days, and not longer, — Ibid. 

Ath. Of the Hearing, Discharge, and Effect thereof. 

If upon the hearing, the prisoner shall be entitled to his discharge, 
that is if he shall not be detained lor treason or felony, not bailable, 
plainly expressed in the warrant of commitment, or as accessary 
thereto before the fact, or upon suspicion thereof, then the judge or 
magistrates before whom the prisoner shall be brought, shall within two 
days after the prisoner shall be brought before them, discharge the 
said prisoner, taking his, her, or their recognizance; with one or more 



LAW OF JVIAGISTRATES. 273 

• 
surety or sureties, in any sum according to their discretions, having On discharge 

regaiti to the quality of the prisoner and nature of the offence, for his recognizance 
or their appearance in the Court of Common Pleas, the term following, 
or at the next assizes, sessions, or general jail delivery, for the district, 
city, or place Avhere the commitment was, or the offence was com- 
mitted, or in such other Court where the offence is properly cogniza- certify writ 
ble, as the case shall require, and shall then certify the said writ, withzance. °°"'" 
the return thereof, and the said recognizance, into the said Court 
where appearance is to be made. 1st S. L., 118. 

In the case of the State vs. Potter, Dudley, 296, it was ruled, that 
the protection intended l-y the Habeas C'rpiis Act, goes no farther 
than the enlargement of the prisoner on hali. if the offence be bailable 
in its nature: and where, upon supposed defect in the commitment or 
evidence, the prisoner was set at liberty without bail, it was held to 
be erroneous. 

No person or persons; which shall be delivered or set at large "pon persons set 
any Hab^s Corpus, shall at any time be again imprisoned or com- ^_J {^Y^^'J^^J , 
mitted for the same offence, by any person or persons whatsoever, J^'jJ^^''^"-''>' 
other than by the legal order and process of such Court, wherein he Court. 
or they shall be bound by recognizance to appear, or other Court 
having jurisdiction of the cause ; and if any i;r»rson or persons shall 
knowingly, contrary to this act, re-commit or ir.ipiison, or knowingly 
procure, or cau.ie to be re-committed or impilsoned, for the same 
offence, or pretended offf^ice, any person or persons delivered or set 
at large as aforesaid, or be khowinslv aidinjj or assisting therein, 

" ' -:> J b to ' Penalty for 

then he or they shall forfeit to the prisoner or party aggrieved the sum so doing, or 

&SSlStlIi^> 

of £500; any colorable pretence or variation in the warrant or war- 
rants of commitment, notvyithstanding, to be recovered by the said fj^^j.gj,^j^_ 
prisoner or party grit-viid, his executors or administrators, against ^'''^'^• 
such offender, his executors or administrators, by any action of debt, 
suit, i)ill, plaint, or information. 1st S. L., 119. 

Nothing in this act shall extend to discharge out of prison, ^^ny j^^ j.,j j^^ 
person charged in debt, or other action, or with process in any ci'il^^P'^j". j^j^, 
cause, hut t'lat after he shall be discharged of his imprisonment for "^'-suit- 
such his criminal offeac'% he shall be kept in custody according to law 
for such other suit. — lb., J 20. 

bth. Penalty for neglect or refusal. 
If any officer or officers, his or their under officer or under officers, 
under keeper or under keepers, ^i deputy, shall neglect or refuse to 
35 



274 



LAW OF MAGISTRATES 



Officers, bow 
to be pro- 
ceeded 
?; Hinst for 
not obeying 
sucli writs. 



Penalty for 
denying a 
Habeas 
Corpus. 



make the returns aforesaid, or to bring the Itody or bodies of the 
prisoner or prisoners, according to the command of the said writ, 
within the respective times aforesaid, or upon demand made hv the 
prisoner, or person in his behalf, shall refuso to deliver, or v/itbin the 
sj)ace of six hours after demand, shall not deliver to the person so 
demanding, a true copy of the warrant or warrants of com.mitment 
and detainer of such prisoner, which he and they are hereby required 
to deliver accordingly; all and every the head jailors and keepers of 
such person, and such other person in whose custody the prisoner 
shall be detained, shall, for the first offence, forfeit to the prisoner or 
party grieved, the sum. of £100; and for the second offence, the 
sum of £200, and shall, and is hereby made, incapable to hold or 
execute his said office; the said penalties to be recovered by the 
prisoner or party grieved, his executors and administrators, against 
such offender, his executors or administrators, by any action of debt, 
suit, bill, plaint, or information, in any of the King's Courts at West- 
minster, wherein no essoin, protection, privilege, injunction, wager 
of law, or stay of prosecution by ^^non vuJt ulterius prosequi," or other- 
wise, shall be admitted or allowed, or any more than one imparlance; 
and any recovery or judgement at the suit of any party grieved, 
shall be a sufficient conviction for the first offence ; and any after 
recovery or judgement at the suit of a party grieved, for any offence 
after the first judgement, shall be a sulncient conviction to bring the 
officers or person within the said penalty fur the second offence. 1st 
S. L., 119, sec. 5. 

It shall and may be lawful to and for any prisoner and prisoners 
as aforesaid, to move and obtain his or their Habeas Corpus, as well 
out of the High Court of Chancery or Court of Exchequer, as out of 
the Courts of King's Bench or Common Pleas, or either of (hem; 
and if the said Lord Chancellor or Lord Keeper, or any Judge or 
Judges, Baron or Barons, for the time being, of the degree of the 
Coif, of any of the Courts aforesaid, in the vacation time, upon view 
of the copy or copies of the warrant or warrants of commitment or 
detainer, or upon oath made that such copy or copies were denied as 
aforesaid, shall deny any writ of Habeas Corpus, by this act required 
to be granted, being moved for as aforesaid, they shall severally forfeit 
to the prisoner or party grieved, the sum of £500, to be recovered in 
manner aforesaid. 1st S. L., 120, sec. 10. 

No person or persons shall be sued, impleaded, molested, or troubled 
for any offence against this act, unless the party offending be sued or 



LAW OF MAGISTRATES. 275 

; • 

impleaded for the same within two years at the most, after such time Prosecu- 
wherein the offence shall be committed, in case the party grieved offences- 
shall not be then in prison; and if he shall be in prison, then within time to le 
the space of two years after the decease of the person imprisoned, or 
his or her delivery out of prison, which shall first happen. 1st S. L., 
122, sec. 17. 

Every person whatsoever to whom any power is given, either judi- penalty on 
cial or ministerial, by this act, and which, by virtue of this act, he isneg"cting 
required and commanded to do, and shall wilfully neglect, refuse or '^^"^ "^^'y- 
omit to do the same, when the same shall be legally requested and 
demanded, according to the direction of the said Habeas Corpus Act, 
and when the person or persons so requesting and demanding the 
same are legally entitled to request or demand by the said Act, and 
are within the benefit of the same, according to the true intent and 
meaning thereof, that then and in such case, such person, whether 
magistrate or officer, wilfully so refusing, neglecting or omitting what 
this act requireth and commandeth him or them, for each such wilful 
neglect, refusal or omission, shall forfeit the sum of £500 current 
money of this province, loss of places or office, and undergo such pen- 
alties as by the said act is appointed, for every respective magistrate, 
officer, minister, or person whatsoever, within the kingdom of Eng- 
land, to be recovered in any of the Courts of Record in this Province, 
in such manner and form as by the said Habeas Corpus Act is appoin- 
ted to be recovered in any of Her Mnjesty's Courts at Westminster. 
2d S. L., 400, sec. 3. 

If any magistrate shall wilfully refuse, neglect, or omit to grant the Penalties on 
■writ of Habeas Corpus to s.ny person or persons, requesting or de- |^?5s^ng"\o^ 
manding the same, who may be legally entitled to request or demand ^"^abeas ^ 
the same by the said Act, he shall forfeit for any such default the sum^""^^"®^"' 
of five hundred dollars. Acts 1838, p. 15, sec. 9. 

Every sheriff deputy sheriff, or jailor, shall have power, and he is g,,eriffto 
authorized, required and commanded, to give due obedience to the °'^J'y^*'^^^" 
execution of every writ of Habeas Corpus, made or signed by any 
person or persons whatsoever, by law empowered to make, sign and 
grant the same, accoiding to the provisions of an Act for the better 
securing the liberty of the subject, and for the prevention of imprison- 
ments beyond the seas, commonly called the Habeas Corpus Act, 
made of force in this State; and shall do and perform any matter or 
thing, which by the same he may be required to do; and if he shall 
wilfully neglect, refuse, or omit to obey or perform the same, when Penalties for 
legally requested and demanded, in such case, for each such neglect, 



c.'iarges 

6t:»ri 

have 



'iie LAW Oi MAGISTRATES. 

refusal or omission, he shall forfeit the sum of five huri ircd dollars, to 
be recovered by indictment. Acts 1839, p. 33, sec. 43, 

eth. Of the Fees of Officers. 
Officer bri..?- fhe officer directed- to brinff up the prisoner is entitled to have 

ing prisouer, • o i i 

eutiiiert 10 hig fees in advance for brinoina; up the prisoner: said fees lobe ascer- 

fees ill _ _ o 1 1 » 

advance. tained Ly the judge or Court that awarded the writ, and shall be 
endorsed thereon; and by Act of IS'27, p. .57, shall be six cents per 
mile, in addition to all necessary charges; he is also entitled to the 
bond of the prisoner for the fees of bringing him back, should he be 
remanded by the Court. 1st S. L., 117. 
What I" the case of Taggart vs. Hutson, it -.vcis ruled, that under the 

sh^Mfl^thaii clause "all necessary charges," the sheriff v.'a.> entitled to the amount 
paid out for support of himself and prisoner, aria going to and return- 
ing from the place appointed, and also for hire of horse and guard, 
and that the prisoner was liable to pay said charges, although acquit- 
ted cf the offence for which he was charged. Rice's R., 300. 

lih. Precedents. 
Petition for a Writ of Habeas Corpus. 
South -Carolina, > 

To any two magistrates for the State aforesaid. 
The humble petition of of in the State aforesaid, shew- 

eth that your petitions ;• is retained in the custody of sheriff of 

in jail, by virtue- •; u commitment under the hand and seal of 
one' of the magistrates for the said State; your petitioner, therefore^ 
humbly prays, your Honors to grant him a writ of Habeas Corpus, to 
bring your petitioner before your Honors, that the cause of the com- 
mitment being known and seen, such forth^er proceedings may be 
had thereon, as are agreesble to law and justice. 

Plaintiffs Attorney. 

Writ of Habeas Corpus. 

To Esq., sheriff of You are hereby commanded, that 

the body of by whaL ver name ihe said is called into and 

under custody, committed and detained, as it is said, together vith the 
day and cause of caption and detention of the said you have 

before us, the subscribing at immediately after the receipt 

hereof, to do and receive what we the said magistrates, shall then and 



LAW OF MAGISTRATES. 277 

there consider in that, behalf; and have you then and there this writ, 
witness, &c., &c. 

A. B., 
^ Magistrate. 

C. D., 

Magistrate. 
Aii writs of Haheai^ Corpus must be marked in this manner, "PerEndorse- 
statutvm,tricesimq primo, Caroli secvndi Regis," and shall be signed '"^°' 
by the person awarding the same. 

On he -ling the return in this case, and it appearing to us, that the order to 
said pri;^ner is detained by warrant of commitment for an offence not'^™^"*^' 
bailable, it is ordered that he be remanded, to await his trial. 
This day of , } 

A. D., S 

A. B., 

Magistrate. 
O. D., 

Magistrate. 
On hearing the return in this case, and it appear* '4' that the said order of 
prisoner is detained in custody under a warrant of co;) oitment for a 
bailable offence, and he having entered into recognizanf-o, with surety 
according to law: .it is ordered, that he be discharged from his 
imprisonment. 

Th's day of , > ' 

A. D., \ 

A. B., 

Magistrate. 
C. D., 

Magistrate. 



HARBORING, 

Is the affording shelter, concealment or entertainment to an abscond- 
ing apprentice, slave, or articled or apprenticed seaman of another. 
In the former case, the only remedy is by an action for damages; in 
the two latter, the party injured may proceed either by civil action, 
or by indictment. 

1st. Harboring Seamen. 
2d. Harboring Si-aves. 



278 



LAW OF MAGISTRATES, 



Penalty for 

secreting 

eeamen. 



How far 
provisions 
of former 
act may 
extend. 



Articles of 
Bhip, 

admissible 
evidence. 



1st. Seamen. 

If any person shall, either on shipboard or on shore, harbor or 
secrete a seaman who shall have signed an agreement to proceed on 
a voyage, or shall have deserted or absented hims^f without leave 
from the captain of the ship or vessel to which he may belong, under 
such agreement, every person so offending, shall, for every such sea- 
man so harbored or secreted, forfeit and pay the sum of fifty dollars, 
one half whereof shall go to the informer; and upon a second con- 
viction, the person so offending, if the keeper of a public or lodging 
house for seamen, in addition to the penalty before provided, shall 
forfeit his or her license. And in case any such seamen, or any boy 
apprenticed on board any ship or vessel, shall be harbored, secreted, 
or detained, it shall be lawful for any justice of the peace, upon com- 
plaint, on oath, made by the master of the said ship, or on his behalf, 
to inquire into the matter, and if he shall see right, by warrant under 
his hand and seal, to cause search to be made into any place wherever 
the said seaman or apprentice may be harbored or secreted, and to 
cause such seaman or apprentice to be restored to the master of the 
said ship. 6th S. L., 557, sec. 1st. 

The provisions of the first section of an act entitled "An Act to 
prevent the harboring of deserted seamen," passed on the 21st day of 
December, one thousand eight hundred and thirty-six, shall extend to 
every agreement to proceed or continue on a voyage, made in this 
State or elsewhere, by a seaman, and whether in contemplation of a 
voyage to be commenced in this State or elsewhere; provided, that 
the said agreement, at the time when any such seaman may be har- 
bored or secreted, contrary to the provisions of the said Act, shall not 
have been fully executed and determined, but shall be of force and 
binding on such seamen, according to the laws of this State, or of the 
country where the same was entered into, or to which the ship or ves- 
sel in which such voyage was to be mads, may belong. 6th S. L., 
576, sec. 1 and 2. 

On the prosecution or trial of any indictment under the aforesaid 
Act, or any Act amending the same, the articles of the ship or vessel, 
authenticated by the affidavit of the captain, sworn to before any 
notary public or justice of the peace of this State, shall be admissible 
in evidence, and shall be sufficient to establish the fact, that any sea- 
man whose name appears subscribed thereto, has signed the agreement 
contained in such articles, until the contrary be made to appear by 
proof; any law, usage or custom to the contrary thereof in any wise 
notwithstanding. — Ibid. 



LAW OF MAGISTRATES. 279 

2d. Slaves. 

If any free negro, mulatto or mestizo, or any slave, shall harbor, ppn^,ty ^,„ 
conceal or entertain any slave that shall run away or shall be charged o^/siavLTr 
or accused with any criminal matter, every free r.egro, mulatto and >'8^^^^n|_ 
mestizo, and every slave, who shall harbor, conceal or entertain any 
such slave, being duly convicted thereof, according to the directions 
of this Act, if a slave, shall suffer such corporal punishment, not extend- 
ing to life or limb, as the justice or justices who shall try such slave 
shall, in his or their discretion, think fit; and if a free negro, mulatto 
or mestizo, shall forteit the sum often pounds, current money, for the 
first day, and tv/enty shillings for every day after, to the use of the 
owner or owners of such slave so to be harbored, concealed oi enter, 
tained, as aforesaid, to be recovered by warrant, under the hand and 
seal of any one of his Majesty's justices of the peace, in and for the 
county where such slave shall be so harbored, concealed or entertained^ 
in like manner as debts are directed to be recovered by the Act for 
trial of small and mean causes; and that in case such forfeitures 
cannot be levied, or such free negroes, mulattoes or mestizoes 
shall not pay the same, together with the charges attending the prose- 
cution, such free negro, mulatto or mestizo shall be ordered by the 
said justice to be sold at public outcry, and the money arising by such 
sale shall, in the first place, be paid and applied for and towards the 
forfeiture due, made payable to the owner or owners, and the charges 
attending the prosecution and sale, and the overplus, (if any,) shall 
be paid by the said justice into the hands of the public treasurer, to be 
afterwards paid and applied in such manner as b} the General Assem- 
bly of this Province shall be directed and appointed, 7th S. L., 407, 
sec. 29th. 

If any white person shall harbor, conceal or entertain any runaway pgj^^^jggjj^ 
or fugitive slave, such person shall be liable to be indicted for a mis- ^^'*® , 

° ' r persons for 

demeanor, or prosecuted in a civil action for damages, at the election i'^'''°''"*s 

' t3 slaves. 

of the owner or person injured: and in case any person, being indicted, 
shall be convicted of said offence, such person shall be fined and 
imprisoned at the discretion of the Court, not exceeding one thousand 
dollars fine, nor one year's imprisonment. 7th S. L., 460, sec. 1 & 2. 

If any free negro, mulatto or mestizo shall harbor, conceal or enter- penalty on 
tain any fugitive or runaway slave, and be convicted thereof before '^''^®"^^'°®*" 
two justices and five freeholders, he shall suffer such corporal punish- 
ment, not extending to life or limb, as the said justices and freeholders 
who try such offender, shall, in their-discussion think fit. — Ibid. 

An indictment, under the Act of '21, for harboring a slave, is not 



2eo 



LAW OF MAGISTRATES. 



barred, because a civil action for the same offence was first commen- 
ced, and is pending at the tri?] of the indictment. State vs. Stein, 1st 
Richardson's R.eports, 189. 

Under the Act, the defendant may be proceeded against criminally 
and civilly, at the same time, but the prosecutor M'ill be put to his 
election which case to try; or the trial of one case may be pleaded in 
bar of the other. — Ibid. 



HAWKERS AND PEDLARS. 

A hawker and pedlar is an itinerant trader, who carries goods 
through the streets from town to town, and from place to place, expo- 
sing the same to sa'e. 

In the case of the State vs. Belcher, 1 McMullan, 42, it was held, 
that the sale of goods by a transient j.erson in a house or store, at 
auction or private sale, was not within the Acts against hawkers and 
pedlars. 

1st. Who may grant License, to whom, and ihe Conditions 

AND EXTENT THEREOF. 

2d. Penalty for Peddling without License. 
3d. Powers and Duties of Magistra'^es, Sheriffs, &c., 
therein. 



Exclusive 
power to 
license, 
.ested in 
commission- 
Qra of roads, 
etc. 



Conditions 

ofeach 

license. 



Ten years 
residence, 



Limited to 
the district 
or parish. 



1st. Who may Grant, <^c. 
The sole and exclusive power of granting licenses to havA'kers and 
pedlars, be .: C the same is hereby vested in the Commissioners of 
Roads, in thdr respective districts a;id parishes, a majority of whom, 
in their respective districts or parii^^es, shall at any stated wating, 
and at no other time, hear ail applications for such lif^euse to hawk or 
peddle, and shall grant or reject such ;tt>piIcaiion for one year, as to 
them shall seem proper: Provided^ that such applicant shall, before 
he receives such license, pay into the hands of the said commissioners 
for such district or parish, the sum of fifty dollars, and shall enter into 
bond as now provided by law, except that it be taken and appi-oved by 
the body granting the license; Provided, also, such applicant shall 
have been a citizen of the district the preceding ten years, a; d legally 
entitled to vote, at the time of such application, for members of the 
General Assembly; and provided likewise, that such licer^e so 
granted, shall confer the privilege to hawk und peddle within the 



LAW OF MAGISTRATES. 281 

limit only of the district or parish for which the body granting it have 
themselves been appointed, and shall not be extended in any manner 
to enable any other person to hawk and peddle, saving only the person 
actually named in the license : provided^ also, that in any district or DUtricts, &c. 

. , , , . 1 /- . 1 1 having more 

parish, where there now exists, or may hereafter exist, by law, more than one 
than one Board of Commissioners of Roads, a license taken from any 
one of said Boards shall be sufficient to authorize any person who has 
complied with the provisions of this act, to hawk and peddle within 
said district or parish. Act 1843, p, 262. 

Before a license shall be granted to any hawker or pedlar, the Granting 
Commissioners of Roads shall take from the said hawker or pedlar ''""^^' 
a recognizance, in the penalty of one thousand dollars for himself, 
and five hundred dollars for each oftwo approved sureties, freeholders 
of this State, conditioned, that the said hawker or pedlar, during the 
time for which license may be granted to him, shall be of good beha- 
viour, and especially refrain from all violations of the laws of this 
State, against trading with negroes — against seditious or inflammatory 
publications, or conduct — against gaming — and against the retailing 
of spirituous liquors without license : and the said recognizance, upon 
allegation of breach of the condition, shall be proceeded upon by 
scire facias, as in other cases ; and proof of ihe breach having been 
made, forfeiture, at the discretion of the Court, shall be adjudged. 
6th S. L., 433, sec. 2d. 

2d. Penalty, iSfC. 
If any hawker or pedlar, shall sell, or expose to sale, any goods. Penalty for 

, ,. . ,...,. CI •11. selling with- 

wares or merchandize, m any district in this fetate, without having out license. 

obtained a lawful license for ihat purpose, according to the provisions 

of the Act aforesaid, as amended by this Act, such hawker or pedlar, 

on conviction thereof by indictment, shall forfeit and pay the sum of 

five thousand dollars, instead of the penalty imposed by the first section 

of the said Act. 6th S. L., p. 529, sec. 2d. 

2d. Powers and Duties of Magistrates. 
If any hawker or pedlar shall refuse to submit for inspection his „ , 

"' •^ ^ Hawkers 

license, on the demand of any magistrate, it shall be lawful for such an^ pedlars 

'''=>' ^ not produ- 

magistrate to issue his warrant, directed to the sheriff, or any consta- cing licenses, 
ble, requiring the detention of the goods, wares and merchandize in 
the possession of such hawker or pedlar, together with the carriage 
used for the transportation thereof, if there be one; and if no release 
36 



282 LAW OF MAGISTRATES. 

shall be obtained within ten days from the seizure aforesaid, by tho 
production of a license granted prior to such seizure, or of a recogni- 
• zance or receipt, and payment of fees and expen.<»"s as lequired by 
law, the said magistrate may order a sale of the articles so seized, to 
be made by the said sheriff or constable, oa a notice cf ten days. 
Act of 183D, p. 22, sec. 20. 
Proceeding!? Any sheriff the reunto specially authorized by a magistrate, by a 
kersand Warrant, shall seize and detain the goods, wares, merchandize and 
^' carriage, in the possession of any hawker or pedlar, until a release 
shall be directed by some magistrate, upon payment to him of fees 
and expenses of seizure and detention, and the production to him of a 
license granted 'o the said hawker or pedlar, prior to the warrant 
aforesaid, or of a recognizance entered into by the said hawker or 
pedlar, to answer an indictment for violating the Act concerning 
hawkers and pedlars, or of a receipt of a jailor of the district, of the 
body of the said hawker or pedlar, committed to jail under a warrant 
against him for violating the law. The sheriff, after ten days notice, 
shall proceed, by virtue of an order of said magistrate, to sell the said 
articles, or so much thereof as will cover the amount of five hundred 
dollars, and all expenses ; and after raising the said amount, (if so 
much there be,) the remainder of the articles seized, or of the proceeds 
of sale, shall be delivered or paid to the said hawker or pedlar, and 
all expenses of sale and fees being set aside, five hundred dollars, if 
so much there be, shall be paid into the hands of the Commissioners 
of Public Buildings. Act 1839, p. 33, sec. 44. 



HOGS, SHEEP, AND GOATS. 

If any person or persons sup.U be indicted and found g'uilty of steal- 
Bteaiiiighogs, ing any sheep, goats, or hog.^, he, she, or they, shall ho subject to a 
fine or penalty of five pounds sterling for each and every sheep, goat, 
or hog, for stealing of which he, she, or they may h-^ convicted as 
aforesaid ; and in case any such offender or offenders shall not be 
able to pay such fine or penalty, he, she, or they, insteau of such fine 
or penalty, shall be subject to be publicly whipped, and severally 
receive a number of lashes or stripes, not exceeding thirty-nine stripes 
or lashes, on the bare back; and if any of the said offenders shall, 
at any time afterwards, commit or repeat the like offence, he, she or 
they, on conviction thereof, shall be subject to be publicly whipped, 



LAW OF MAGISTRATES. 283 

and severally receive a number of lashes or stripes, not exceeding 
fifty stripes or lashes, on the bare back. 5th S. L., 140, sec. 4, 5, 
6 and 7. , 

If any person or persono shall be lawfully convicted of wilfully and penalty for 
knowingly marking, branding, or disfiguring of any sheep, goat or gi',eep"ho|i: 
hog, of, or belonging to a.i.j other person, the said offender or ofllenders ^ "' 
shall, for each and every sheep, P'oat, or hog, of which he, she or 
they shalTor may be convicted of branding; or disfiguring as aforesaid, 
be subject to the penalty of five pounds ; and on non-payment 
thereof, he, she or they shall be publicly whipped, and severally receive 
a number of stripes or lashes, not exceeding thirty-nine s'ripes or 
iashes, on the bare back; and in case any of the said offenders sh&,ll 
afterwards repeat or commit a like offence, he, she, or they, on con- 
viction there.if, shall be liable to the penalty or fine often pounds for 
each and every sheep, goat, or hog, by him, her, or them killed, 
branded or disfigured, and of which he, she or ihey shall be convicted 
as aforesaid ; luid in case of non-paymenf of the said penalty or fine, 
he, she or th'^y shall be publicly whipped, and severally receive a 
number of lashes &r stripes, not exceeding fifty stripes or lashes, ou 
the bare back. — lb. 

It shall not be lawful hereafter for any slave to brand, or mark any gi^^^^g j,^j ^^ 
horse, mare, gelding, colt, fille)', ass, mule, bull, cow, steer, ox, calf, ^{^?JJj'!j|' i^. 
sheep, goats or hogs, but in the presence of, and by the direction of j^JPggj^„-^j,®fj, 
some white person, under the penalty of being whipped; provided, ^'^''^ 
the same whipping shall not exceed fifty lashes, by order of any one 
or more of the justices of the peace of the county or parish before whom 
such offence shall be proved by the evidence of any white person or 
slave. — lb. 

All witnesses, who shall be duly subpoenaed or bound over in recog- 
nizance to attend and give evidence against all or any of the offenders 
aforesaid, and do accordingly attend, shall be entitled to the same 
allowance or charges as witnesses attending trials in the Court of 
Common Pleas; which said alio wance and charges shall be defrayed 
and paid out of the above fines and penalties, and on defect thereof, 
out of any other fines or forfeitures that may be in the hands of, or 
received by the clerk of *ho Court where such offenders are tried. — 
Ibid. 

The word "pig" not being in the Act of Assembly against hog 
stealing, an indictment for stealing a pig, contrary to that Act, cannot 
bo. supported. State vs. S. McLain; 2d Brevards Rep., 443. 

Since the Act of Assembly, 1789, against cattle stealing, all indict- 



284 LAW OF MAGISTRATES. 

ments for that offence must conclude against the Act of Assembly, 
and cannot be maintained for larceny at common law. 

Incyctment for larceny at common law, for stealing two sheep, was 
quashed. State vs. Ripley; 2d Brevard's Rep., 300. 

To chase and shoot a hog with a felonious intent, without removing 
it after it is shot, will not constitute hog stealing. State vs. Seagler; 
1st Richardson's Rep., 30. 



HOMICIDE. 

Offences against the life of a man comes under the general name 
of homicide, which in our law signifies the killing of a man by a man, 
1st Haw. P. C, c. 26. 

1st. Justifiable Homicide. 

2d. Excusable Homicide. ^ 

3d. Felonious Homicide. 

1*^ Jusiijiahle Homicide. 

By comm and of law. — Amongst the acts of unavoidable neces- 
maiefactors. sity, may be classed the execution of malefactors, by the person whose 
office obliges him, in the performance of public justice, to put those 
to death who have forfeited their lives by the laws and verdict of their 
country. These are acts of necessity, and even of civil duty; and 
therefore not only ju stifiable, but commendable, when the law requires 
them. But the law must require them, otherwise, they are not justi- 
fiable ; and, therefore, wantonly to kill the greatest of malefactors, 
would be murder: and we have seen that all acts of official duty 
should, in the nature of their execution, be conformable to the judge- 
ment by which they are directed. 1 Russ., 345. 

In advancement of public justice. — Amongst the acts done by 
Officers kill- , , . ^ , , ^ , , ^ , ,. . . 

ing those the permission of the law, for the advancement of public justice, may 

who assault r l rr- 1 • 1 • r 1 • rf 

and resist be reckoned those ot the officer, who, in the execution of his office 
either in a civil or criminal case, kills a person who assaults and 
resists him. The resistance will justify the officer in proceeding to 
the last extremity. So that in all cases, whether civil or criminal, 
where persons having authority to arrest or imprison, and using the 
proper means for that purpose, are resisted in so doing, they may 



them 



LAW OF MAGISTRATES. 285 

repel with force, and need not give back; and if the party making 
resistance is unavoidably killed in the struggle, this homicide is justi- 
fiable. A rule founded in reason and public utilit} ; for few men would 
quietly submit to an arrest, if in every case of resistance, the party 
empowered to arrest were obliged to desist and leave the business 
undone: and a case, in which the officer was holden guilty of man- 
slaughter, because he had not first given back, as far as he could, 
before he killed the party who had escaped out of custody, in execution 
for a debt, and resisted being retaken, seems to stand alone, and has 
been mentioned with disapprobation. 1st Russell, 546. 

When the party does not resist, but merely flies to avoid the arrest, officers 
the conduct of the officer should be cautiously regulated by the nature Jho^fly from 
of the proceeding. For, in civil cases, and also in the case of a""^^*' 
breach of the peace, or any other misdemeanor, short of felony, if the 
officer should pursue a defendant flying in order to avoid an arrest, 
and should kill him in the pursuit, it will be murder or manslaughter, 
according to the peculiar circumstances by which such homicide may 
have been attended. But if a felony be committed, and the felon fly 
from justice, or a dangerous wound be given, it is the duty of every 
man to use his best endeavors for preventing an escape; and if in the 
pursuit the party flying be killed, where he cannot be otherwise over- 
taken, this will be deemed justifiaVjle homicide. This rule is not con- 
fined to those who are present, so as to have occular proof of the fact, 
or to those who first come to the knowledge of it; for if in these cases 
fresh suit be made, and a fortiori, if hue and cry be levied, all who 
join in aid of those who began the pursuit, are under the same protec- 
tion of the law. And the same rule holds, if a felon, after arrest, 
break away as lie is carrying to jail, and his pursuers cannot retake 
without killing him. — lb., 547. 

Where a person is indicted for felony, and will not suflfer himself to 
be arrested by an officer, having a warrant for that purpose, the offi- 
cer may lawfully kill him if he cannot otherwise be taken; though 
such person be innocent, and though in truth no felony have been 
committed; but it seems that this must be understood only of arrests 
by officers, and does not extend to arrests by private persons of their 
own authority. — Ibid, 548. 

In the case of a riot or rebellious assembly, the peace officers and ^ 
their assistants, endeavoring to disperse the mob, are justified, both '^i^P"^'"? * 

' or ' J 7 mob, etc. 

at common law and by the Riot Act, in proceeding to the last extremity, 
in case the riot cannot otherwise be suppressed. And it has been said, 
that perhaps the killing of dangerous rioters may be justified by any 



286 LAW OF MAGISTRATES. 

private persons who cannot otherwise suppress them, or defend them- 
selves from them, inasmuch as every private person seems to be autho- 
rized by the law to arm himself for the preservation of the peace. 
Ibid. 
Jailors and Jailofs and their officers are under the same special protection as 
assistants other ministers of justice; and, therefore, if in the necessary discharge 
prismfers. of their duty, they meet with resistance, whether from prisoners in 
civil or criminal suits, or from others, in behalf of such prisoners, they 
are not obliged to retreat as far as they can vrith safety, but may freely, 
and without retreating, repel force by force; and if the party so resist- 
ing happen to be killed, this, on the part of the jailor, or his otilcer, 
or any person coming in aid of him, will be justifiable homicide. 
Ibid. 
Homicide in IFor prevention of Crime. — A man may repel force by force 

the preren- ■• / _ _ "^ ' _ •' 

tionofauy in defence of his • person, habitation, or property, against one 

forcible and . . ' ' > f r J' fa ^ 

atrocious who manifestly intends and endeavors, by violence or surprise, to 

crime. •' . , t i • 

commit a known felony upon either. In these cases he is not 
obliged to retreat, but may pursue his adversary till he finds 
himself out of danger; and if, in a conflict between them, he hap. 
pens to kill, such killing is justifiable. But it has been holden, that 
this rule does not apply to any crime unaccompanied with force, as 
picking of pockets. It seems, therefore, that the intent to murder, 
or commit other felonies attended with force or surprise, should be 
apparent, and not be lefl in doubt: so that if A. make an attack upon 
B., it must plainly appear by the circumstances of the case (as the 
manner of the assault, the weapon, &c.,) that the life of B. is in immi- 
nent danger; otherwise, his killing the assailant will not be justifiable 
self-defence. And the rule clearly extends only to cases of felony; 
for if one come to beat another, or to take his goods merely as a tres- 
passer, though the owner may justify the beating of him, so far as to 
make him desist, yet if he kill him, it is manslaughter. But if a house 
be broken open, though in the day time, with a felonious intent, it 
shall be within the rule. 1st Russell, 549. 
Persons A statute made in affirmance of the common law, after reciting that 

killing those . . 

who are it had been doubted whether, if any person should attempt feloniously to 

attempting . i • i ^ 

to rob or rob or murder any persons, m or near any common highway, cart-way, 

murder, or . , . . i n- i 

commit or foot-way, or in their mansions, messuages, or dwelling places, or 
attempt to break any dwelling-house in the night time, and should 
happen in such felonious intent to be slain by those whom they should 
so attempt to rob or murder, or by any person being in their dwelling 
house, attempted to be broken open, the person so happening to slay 



LAW OF MACrlSTRATES. 287 

the person so attempting to commit murder or burglary, should forfeit 
goods and chattels, enacts, "that if any person or persons be indicted 
or appealed of or for 'h3 death of any such evil-disposed person or per- 
sons attempting to murder, rob, or burglarily to break mansion-houses, 
as is above said, the person or persons so indicted or appealed thereof' 
and of the same by verdict so found and tried, shall not forfeit or lose 
any lands, tenements, goods, or chattels, for the death of any such evil 
disposed person in such manner slain, but shall be thereof and for the 
same fully acquitted and discharged," in like manner as if lawfully 
acquitted of the death of such person. But though the statute only 
mentioned certain cases, it must not be taken to imply an exclusion of 
any other instances of justifiable homicide which stand upon the same 
grounds of reason and justice. So that the killing of one who attempts 
the wilful burning of a house, is free from forfeiture without the aid of 
this statute. — Ibid, 550. 

Where a known felony is attempted upon any one, not only the party interference 
assaulted may repel force by force, but his servant attending him, orp^on^,o 
any other person present, may interpose to prevent the mischief, and fJionles. 
if death ensue, the party so interposing will be justified. So, where 
an attempt is made to commit arson, or burglary, in the habi- 
tation, any part of the owner's family, or even a lodger, may 
lawfully kill the assailants, in order to prevent the mischief intended. 
1st Russell, 552. 

But in cases of mutual combats, or sudden affrays, a person interfer- interference 
ing should act with muchcautioh. Where indeed, a person interferes persons in 
between two combatants with a view to preserve the peace, and not to^ufuai 
take part with either, giving due notice of his intention, and is under ^"a^rayg. 
the necessity of killing one of them in order to preserve his own life 
or that of the other combatant, it being impossible to preserve them by 
other means, such killing will be justifiable: but, in general, if there 
be an affray and an actual fighting and striving between persons, and 
another run in, and take part with one party, and kill the other, it will 
not be justifiable homicide, but manslaughter. — Ibid. 

It should be observed, that as homicide committed in the prevention Time within 
of forcible and atrocious crimes, is justifiable only upon the plea of homicide 
necessity, it cannot be justified, unless the necessity continue to the justifiable, 
time when the party is kille d. Thus, though the person upon whom 
a felonious attack is first made be not obliged to retreat, but may pur- 
sue the felon till he finds himself out of danger; yet, if the felon be 
Killed after he has been properly secured, and when the apprehension 
of danger has ceased, such killing will be murder: though perhaps, if 



288 LAW OF MAGISTRATES. 

the blood were still hot from the contest or pursuit, it might beheld to 
be only manslaughter, on account of the high provocation. — Ibid. 

2d. Excusable Homicide. 
By Misadventure. 
In Self Defence. 

By Misadventure. — Homicide per infortunium, or misadventure, 
is where a man doing a lawful act, without any intention of 
hurt, and using proper precaution to prevent danger, unfortu- 
nately kills another: as where a man is at work with a hatchet, 
and the head thereof flies off) and kills a stander-by; or where 
a person, qualified to keep a gun, is shooting at a mark and 
undesignedly kills a man; for the act is lawful, and the efl^ect is 
merely accidental. So, when a workman throws rubbish from a 
house, in the ordinary course of his vi^ork, by which a person under- 
neath is killed, this is homicide by misadventure only, if it were done 
in a retired place, where there was no probability of persons passing 
by, and none had been seen about the spot before; or if timely and 
proper warning were given to such as might be below." So, where a 
person is moderately correcting his child, a master his apprentice, or 
scholar, or an officer punishing a criminal, (as by whipping,) and hap- 
pens to occasion his death, it is only misadventure; for the act of 
correction was lawful: but if he exceeds the bounds of moderation, 
either in the manner, the instrument, or the quantity of punishment, 
and death ensues, it is manslaughter at lea^t; and in some cases 
(according to circumstances) murder; for the act of immoderate cor- 
rection, is unlawful. Likewise to whip another's horse, whereby he 
runs over a child and kills him, is held to be accidental death in the 
rider, for he has done. nothing unlawful: but it is manslauglifer in the 
' person who whipped him, for the act was a trespass, and at best a piece 

of idleness of inevitable dangerous consequence. -Where one is law- 
fully using an innocent diversion, as shooting at butts, or at a bird, &;c., 
by the glancing of an arrow, or such like accident, kills another, this 
is only homicide by misadventure. So, where a person happens to 
kill another in playing a match of foot ball, wrestling, or such like 
sports, which are attended with no apparent danger of life, and inten- 
ded only for the trial, exercise and improvement of the strength, 
courage and activity of the parties. In general, if death ensues in 
consequence of an idle, dangerous, and unlawful sport, the slayer is 
guilty of manslaughter, and not misadventure only, for these are 



LAW OF MAGISTRATES. 289 

unlawful acts. Thus, if a man, by shooting of a gun, or throwing stones 
in a city or highway, or other place where men usually resort, by throw- 
ing stones at another wantonly, in play, which is a dangerous sport, and 
has not the least appearance of any good intent; or by doing any 
other such idle action as cannot but endanger the bodily hurt of some 
one or other; or by tilting or playing at hand-sword without the king's 
command; or by parrying with naked swords, covered with buttons 
at the points, or with s\vords in the sc?bbard, or such like rash sports, 
which cannot be used without the manifest hazard of life, he is guilty 
of manslaughter. 2d Tomlins, 100. 

In self-defence. — Homicide in a man's own defence, seems to be, 
where one, who hath no other possible means of preserving his life from 
one who combats with him, on a sudden quarrel, kills the person by 
whom he is reduced to such an inevitable necessity. And not only he 
who, upon an assault, retreats to a wall, or some such strait, beyond 
which he can go no farther before he kills the other, is judged by the 
law to act upon an unavoidable necessity; but also he, who being assaul- 
ted in such a manner, and in such a place that he cannot go back, with- 
out manifestly endangering his life, kills the other without retreating 
at all. And notwithstanding a person who retreats from an assault 
to the wall, give the other wounds in his retreat, yet if he give him 
no mortal wound until he got thither, and then kill him, he is guilty 
of homicide, se defendendo only. But if the mortal wound was first 
given, then it is manslaughter. And an officer who kills one that 
resists him in the execution of his office, and even a private person 
that kills one who feloniously assaults him in the highway, may justify 
the fact, without ever giving back at all. But if a person, upon 
malice prepense, strike another, and then fly to the wall, and there 
in his own defence kills the other, this is murder. Hereof there can 
be no accessaries, either before or after the act, because it is not done 
with a felonious intent, but upon inevitable necessity. Grimke, 222. 

Sd. Felonious Homicide, 

Is the killing of a human creature, of any age or sex, without justi- 
fication or excuse. 

Killing a slave under sudden heat. — If any person shall kill 
any slave on sudden heat and passion., such person, on conviction, shall 
be fined in a sum not exceeding five hundred dollars, and be imprisoned 
not exceeding six months. 6th S. L., p. 158, sec. 2d. 

Manslaughter. — Is the unlawful killing of another without 

malice, either express or implied ; which may he voluntarily upon a 
37 



provocation. 



290 LAW OF MAGISTRATES. 

sudden heat, or involuntarily, but in the commission of some unlawful 
act. 

WordBof It has been shewn, that the most grievous words of reproach, con- 

temptuous and iiisuliinir actions or gestuies, or trepj i^ses against 
lands or goods, will not free the party killing from vije guilt of murder, 
if upon such provocation a deadly weapon was made use of, or an 
intention to kill, or to do sr me great bodily harm, was otherwise man- 
ifested. Bui if no such weapon be used, or intention manifested, and 
the party so provoked give the other a box on the err, or strike him 
with a stick or other weapon not likely to kill, and kill him unluckily 
and against his intention, it will be only manslaughter. It is, indeed, 
said to have been held in one case, that words of menace of bodily 
harm, are a sufficient provocation to reduce the offence of killing to 
manslaughter : but it has been considered that such words ought, at 
least, to be accompanied by some act denoting an immediate intention 
of following them up by an actual assault. But though words of 
slighting, disdain, or contumely, will not of themselves make such a 
provocation as to lessen the crime into manslaughter, yet it seems, 
that if A. give indecent language to B., and B. thereupon strike A., 
but not mortally, and then A. strike B. again, and then B. kill A., 
that this is but manslaughter. The stroke by A. was deemed a new 
provocation, and the conflict a sudden falling out ; and on these 
grounds the killing was considered as only manslaughter. 1st Rus- 
sel, 486, 

Provocation When an assault is made with violence or circumstances of indig- 
nity upon a man's person, as by pulling him by the nose, and the 
party so assaulted kills the aggressor, the crime will be reduced to 
manslaughter, in case it appears that the assoult was resented imme- 
diately, and the aggressor killed in the heat of blood, theywror brevis 
occasioned by the provocation. So if A. be passing along ihe street, 
and B. meeting him, (there being convenient distance between B. 
and the wall) take the wall ofhim and justle him, and thereupon A. 
kill B., it is said that such justling would amount to a provocation, 
which would make the killing manslaughter. And again it appears 
to have been considered, that where A. riding hti the road, B. whipped 
the horse of A. out cl the track, and then A. alighted and killed B., 
it was only manslaughter. But, in the two last cases, it should seern 
that the first aggression must have been accompanied with circum- 
■stances of great violence or insolence; for it is not every trivial pro- 
vocation, which, in point of law, amounts to an assault, that will of 
course reduce the crime of the party killing to manslaughter. Even 



by assault. 



LAW OF MAGISTRATES. 291 

a blow will not be considered as sufficient provocation to extenuate 
in cases where the revenge is disproportioned to the injury, and out- 
rageous and barbarous in its nature : but, when the blow which gave 
the provocation has been so violent, as reasonably to have caused a 
sudden transport of passion and heat of blood, the killing which ensued 
has been regarded as the consequence of human infirmity, and entitled 
to lenient consideration. Thus, where a woman, iifter some words 
of abuse on both sides, gave a soldier a box on the rar, which the 
soldier returned, by striking her on her breast with the pommel of his 
sword ; and the woman then running away, the soldier pursued, and 
stabbed her in the back with his svvord; Holt., C. J., at first con- 
sidered it to be murder; but, upon its coming out in the progress of 
the trial, that the woman had struck the soldier with a patten on the 
face, with great force, so that the blood flowed, it was holden clearly to * 

be no more than .nanslaughter. In this case, the smart of the soldier's 
wound, and the effusion of blood, might possibly have kept his indig- 
nation boiling to the moment of the fact. 1 Russell, 487. 

When a man finds another in the act of adultery with his wife, and provocation 
kills him in the first transport of passion, he is only guilty of man- adulterer."' 
slaughter, and that in the lowest degree; for the provocation is griev- 
ous, such as the law reasonably concludes cannot be borne in the 
first transport of passion. But it has already been shewn, that the 
killing of an adulterer dejiberately, and upon revenge, would be mur- 
der. 1st Russ., 43S. 

There are instances where slight provocations have been consid- provocations 
ered as extenuating the guilt of homicide, upon the ground, that the kimi, etc. 
conduct of the party killing apon such provocations, might fairly be 
attributed to an intention to chastise, rather than to a cruel and im- 
placable malice. But, in cases of this kind, it must appear, that the 
punishment was not urged with brutal violence, nor greatly dispro- 
portioned to the offence; and the instrument must not be such as, from 
its nature, was likely to endanger life. Thus, where A. finding a 
trespasser on his land, in the first transport of his passion, beat him, 
and unluckily happened to kill him, it was holden to be manslaughter: 
but it must be understood, that he beat him, not with a mischievous 
intention, but merely to chastise him for the trespass, and to deter him 
from committing it again. And of the case of the keeper of a park, 
who, finding a boy stealing wood in his master's ground, tied him to a 
horse's tail, and beat him, upon which the horse running away, the 
boy was killed; it is said, that if the chastisement had been more 
moderate, it had been but manslaughter; for, between persons nearly 



292 



LAW OF MAGISTRATES. 



Ducking a 
pickpocket. 



Father ta- 
king up tiio 
quarrel of 
liis son. 



Sudden 
quarrel. 



First blow 
immaterial, 
if quarrel 
sudden, and 
combat 
equal. 



connected together by civil and natural ties, the law admits the force 
of a provocation done to one to be felt by the other. And a fortiori, 
if the master had himself caught the trespasser, and beat him in such 
a manner as showed a desire only to chastise and prevent a repetition 
of the offence, but had unfortunately, and against his intent, killed him, 
it would only have been manslaughter. — lb. 

Where a person, whose pocket has been picked, encouraged by a 
concourse of people, threw the pickpocket into an adjoining pond, in 
order (o avenge the theft, by ducking him, but without any apparent 
intention to take away his life, and the pickpocket was drowned, it 
was ruled to be only manslaughter; for though this mode of punish- 
ment is highly unjustifiable and illegal, yet the law respects the infir- 
mities and imbecilities of human nature, when certain provocations 
are given. 1st Russ., 489. 

In a case where the prisoner's son having fought with another boy, 
and been beaten, ran home to his father, all bloody, and the father 
presently took a cudgel, ran three quarters of a mile, and struck the 
other boy upon the head, upon which he died; it was ruled to be 
manslaughter, because done in sudden heat and passion: but the true 
grounds of the judgement seem to have been, that the accident hap- 
pened by a single stroke given in heat of blood, with a cudgel, not 
likely to destroy, and that death did not immediately ensue. — lb. 

If, upon a sudden quarrel, the parties fight upon the spot, or if they 
presently fetch their weapons, and go into a field and fight, and one 
of them be killed, it will be but manslaughter, because it may be 
presumed that the blood never cooled. And it must be observed, 
with regard to sudden rencounters, that when they are begun, the blood, 
previously too much heated, kindles afresh at every pass or blow; and 
in the tumult of the passions, in which mere instinct, self-preservation, 
has no inconsiderable share, the voice of reason is not heard ; there- 
fore the laws, in condescension to the infirmities of flesh and blood, 
has extenuated the offence. 1st Russ., 495. 

A. uses provoking language or behaviour to B., and B. strikes him,, 
upon which a combat ensues, in which A. is killed; this is holden to 
be manslaughter; for it was a sudden affray, and they fought upon 
equal terms; and in such combats, upon sudden quarrels, it matters 
not who gave the first blow. But it would be otherwise, if the terms 
were not equal, and if the party killing sought or took undue advantage; 
as if B. in the foregoing case, had drawn his sword and made his pass 
at A., the sword of A. being then undrawn, and thereupon A. had 
drawn, and a combat had ensued, in which A. had been killed; for 



LAW OF MAGISTRATES. 293 

this would have been murder, i lasmuch as B., by making the pass, 
his adversary's sword being undrawn, showed that he sought his blood. 
And A's endeavor to defend himself, which he had a right to do, will 
not excuse B.: but if B. had first diawn, and forborne till his adver- 
sary had drawn too, it had been no more than manslaughter. 1 
Russell, 496. 

It has been shewn that where death ensues from an act done in the Deathfrom 
prosecution of a felonious intention, it will be murder: but a distinction trespass, 
is taken in the case of an act done with the intent only of committing 
a bare trespass; as.-if death ensues from such act, the offence will be 
only manslaughter. Thus, though if A. shoot at the poultry of B., 
intending to steal them, and by accident kill a man, it will be mnrderj 
yet, if he shoot at them wantonly, and without any such felonious 
intention, and accidentally kill a man, the offence will be only man- 
slaughter. And any one who voluntarily, knowingly, and unlawfully, 
intends hurt to the person of another, though he intend not death, yel, 
if death ensue, isguilty of murder or manslaughter, according to the cir- 
cumstances of the nature of the instrument used, and the manner of using 
it, as calculated to produce great bodily harm or not. And if a man 
be doing an unlawful act, though not intending bodily harm to any 
one, as if he be throwing a stone at another's horse, and hit a person 
and kill him, it is manslaughter. But it seems that in cases of this 
kind, the guilt would rather depend upon one or other of these cir- 
cumstances, either that the act might probably breed danger, or that 
it was done with a mischievous intent. — 1st Russell, 527. 

Where sports are unlawful in themselves, or productive of danger, Death 
riot, or disorder, so as to endanger the peace, and death ensue in the trom 
pursuit of them, the party killing is guilty of manslaughter. Such sports. " 
manly sports and exercises as tend to give strength, activity, and skill 
in the use of arms, and are entered into as private recreations amongst 
friends, are not, however, deemed unlawful sports: but prize fighting, 
public boxing matches, or any other sports of a similar kind, which 
are exhibited for lucre, and tend to encourage idleness by drawing 
together a number of disorderly people, have met with a different-con- 
sideration. For in these last mentioned cases, the intention of the 
parties is not innocent in itself, each being careless of what hurt may 
be given, provided the promised reward or applause be obtained; and 
meetings of this kind have also a strong tendency in their nature to a 
breach of the peace. Therefi^re, where the prisoner had killed hisoppo. 
nent in a boxing match, it washolden thathe was guiliy of manslaughter; 
though he had been challenged to fight by his adversary for a public 



294 LAW OF MAGISTRATES. 

trial of skill in boxing, and was also urged to engage by taunts- and 
the occasion was sudden. — Ibid. 
Officers of Though officers of justice are authorized to execute their dutios in 
acung a proper and legal manner, notwithstanding any resistance which 

improperly. ^^^ ^^ made to them; yet they should not come to extremities upon 
every slight interruption, nor unless there be a reasonable necessity. 
Therefore, where a collector, having distrained for a duty, laid hold of 
a maid servant who stood at the door to prevent the distress being 
carried away, and beat her head and back several times against the 
door-post, of which she died; although the Court held her opposition 
to the officer to be a sufficient provocation to extenuate the homicide, 
yet they were clearly of opinion that he was guilty of manslaughter, 
in so far exceeding the necessity of the cas''. — 1 Russell, 528. 
Correction in Moderate and reasonable correction may properly be given by 
domestico, parents, masters, and other persons, having authority in foro domes- 
tico, to those who are under their care: but if the correction be immo- 
derate or unreasonable, either in the measure of it, or in the instru. 
ment made use of for that purpose, it will be either murder or 
manslaughter, according to the circumstances of the case. If it be 
done with a dangerous weapon, likely to kill or maim, due regard 
being always had to the age and strength of the party, it will be muc. 
der; but if with a cudgel or other thing not likely to kill, though 
improper for the purpose of correction, it will be manslaughter. 1st 
Russell, 532. 
Persons Where persons employed about such of their lawful occupations, 

their"""" f''*^"'^ whence danger may probably arise to others, neglect the ordi- 
ocMpaUons. ^^^Y cautions, it will be manslaughter at leaot, en account of such 
negligence. Thus, if workmen throw stones, rubbish, or otherihings 
from a house, in the ordinary course of their business, by which a 
person underneath happens to be killed, if they did not look out and 
give timely warning to such as might be below, and there was even 
a small probability of persons passing by, it shall be manslaughter. It 
was a lawful act, but done in an improper manner. It has indeed 
been said, that if this be done in the streets of London, or other popu- 
lous towns, it will be manslaughter, notwithstanding such caution be 
used. But this must be understood with some limitation. It it be 
done early in the morning, when few or no people are stirring, and 
the ordinary caution be used, the party may be excusable: but when 
the streets are full, such ordinary caution will not suffice; for in the 
hurry and noise of a crowded street, few people hear the warning, or 
sufficiently attend to it. 1st Russell, 535. 



LAW OF MAGISTRATES. 295 

The punishment of manslaughter was formerly branding, and for- Punishment 
feiture of goods and chattels, but since their abolition in this State, it is slaughter. 
now punishable by fine and imprisonment. 

Murder. — Is the killing any person under the King's peace, with 
malice aforethought, either express or implied. Bystat.. 1 Jas. 8, 2d S. 
L., 507, it is enacted, "that every person and persons, which, after 
one month next ensuing the end of this present session of Parliament, 
shall stab or thrust any person or persons that hath not then any 
weapon drawn, or that hath not then first stricken the party which 
shall so stab or thrust, so as the person or persons so stabbed orthrust, 
shall thereof die within the space of six months then next following^ 
although it cannot be proved that the same was done of malice fore- 
thought, yet the party so offending, and being thereof convicted by 
verdict of twelve men, confession or otherwise, according to the la.vs 
of this realm, shall be excluded from the benefit of his or their clergy 
and suflTer death as in case of wilful murder. 

1st. Of the Party Kiliing. 

2d. Of the Paety Killed. 

3d. Of the Means of Killing. 

4th. Of the Malice. 

5th. Of the Aiders, Abettors, and Accessaries. 

6th. Of the Place of Trial. 

1st. Of the Party Killing. 

He must be of sound memory and discretion; for lunatics or infants 
are incapable of committing any crime, unless in such cases where 
they show a consciousness of doing wrong, and of course a discretion 
or discernment between good and evil. 4th B. C, 195. 

The person committing the crime must be a free agent, and not 
subject to actual force at the time the fact is done. Thus if A. by force 
take the arm of B., in which is a weapon, and therewith kill C, A. is 
guilty of murder, but not B. But if it be only a moral force put upon 
B., as by threatening him with duress and imprisonment, or even by 
an assault to the peril of his life, in order to compel him to kill C, it is 
no legal excuse. If, howeyer, A. procures B., an idiot, or lunatic, to 
kill C, A. is guilty of the murder as principal, and B. is merely an 
instrument. So if A. lay a trap or pitfall for B., whereby B. is killed, 
A. is guilty of the murder as a principal in the first degree, the trap or 



29G LAW OF MAGISTRATES. 

pitfall being only the instruments of death. If one persuade another 
to kill himself, the adviser is guilty of murder; and if the .party takes 
poison himself by the persuasion of another, in the absence of the 
persuader, yet it is a killing by the persuader; and he is principal in 
it, though absent at the taking of the poison. And he who kills 
another upon his desire or command is, in the judgement oi the law, 
as much a niurderei as ifhe had done it merely of his own head. 1 
Russell, 423. 
Same not On the principle, that it is not murder in the party killing, ifhe act 

certain cases, ui^f^sr the influence of force, certain juries have refused to convict 
slaves of murder, where the killing was by the command, in the pre- 
sence, and under fear of the master. And this rdea seems to be 
sustained by the case of the Stnte vs. Slater, sentenced by Judge 
Wild, 1st Hall's Journal, page 67; and also by the opinion of Judge 
O'Neall, in the case of the State vs. Crank, 2 Bailey, 76, where it is 
said, "if a slave be forced by his owners, against his will, to kill ano- 
ther, the slave acting without a will, but by his master's compulsion, 
would be the bloody instrument of his cruelty, but might be guilty of 
no legal offence; the master would be guilty of murder. 

2d. The Party Killed. 

Murder may be committed upon any person within the King's peace. 
Therefore, to kill an alien enemy within the kingdom, unless it be in 
the heat and actual exercise of war, or to kill a Jew, or outlaw, one 
attainted of felony, or one in a prccmiinire, is as much murder as to 
kill the most regular born Englishman. 1st Russell, 424. 
Chiidretiin ^^ infant in its mother's womb, not being in rerum natura, is not 
womb°*"^ considered as a person who can be killed within the description of 
murder; and therefore if a woman, being quick or great with child, 
take any potion to cause an abortion, or if another give her any such 
potion, or if a person strike her, whereby the child within her is 
killed, it is not murder nor manslaughter. But b\\ a recent statute, 
any person wilfully or maliciously adtninistering poison, to cause or 
procure the miscarriage of any woman, then being quick with child, 
is guilty of a capital otTence; and any persons administering medicines 
to women not quick with child, with intent to procure miscarriage, is 
guilty of felony. Where a child, having been born alive, afterwards 
died by reason of any potions or bruises it received in the womb, it 
seems always to have been the better opinion, that it was murder in 
such as administered or gave them. 1st Russell, 424, 6th S. L.. 158. 



LAW OF MAGISTRATES. 297 

3d. The means of Killing. 
The killing may be effected by poisoning, striking, starving, 
drowning, and a tiiousand other forms of death by which human nature 
may be overcome. But there must be some external violence, or 
corporal damage, to the party; and therefore where a person, either 
by working upon the fancy of another, or by harsh and unkind usage, 
puts him into such passions of grief or fear that he dies suddenly, or 
contracts some disease which causes his death, the killing is not such 
as the law can notice. If a man, how ever, does an act, the probable 
consequence of which may be, and eventually is, death, such killing 
may be murder; although no stroke be struck by himself, and no 
killing may have been primarily intended : as where a person carried * 

a sick father, against his will, in a severe season, from one town to 
another, by reason whereof he died ; or where a harlot, being deliv- 
ered of a child, left it in an orchard covered only with leaves, in which 
condition it was killed by a kite ; or where a child was placed in a 
hog-stye, where it v/as devoured. In these cases, and also where a 
child was shifted by parish officers, from parish to parish, till it died 
for want of care and sustenance, it Avas considered that the acts so 
done, wilfully and deliberately, were of malice prepense. 1st Rus- 
sell, 425. 

Forcing a person tp do an act which is likely to produce his death, 
and which does produce it, is murder ; and threats may constitute 
such ^arce. The indictment charged, first, that the prisoner killed 
his wife by beating; secondlj', by throwing her out of the window; 
and, thirdly and fourthly, that he beat her and threatened to throw 
her out of the window, and to murder her; and that by such threats 
she was so terrified, that, through fear of his putting his threats into 
execution, she threw herself out of the window, and of the beating 
and bruises received by the fall, died. There was strong evidence 
that the death of the wife was occasioned by the blows she received 
before her fall : but Heath, J., Gibbs, J., and Bayley, J., were of 
opinion, that if her death was occasioned partly by the blows and 
partly by the fall, yet if she was constrained by her husband's threats 
of further violence, and from a well grounded apprehension of his 
doing such further violence as would endanger her life, he was 
answerable for the consequences of the fall, as much as if he had 
thrown her out of the window himself: the prisoner, however, was 
acquitted, the jury being of opinion that the deceased threw herself 
out of the window from her own intemperance, and not under the 
influence of the threats. — lb. 
38 



298 LAW OF MAGISTRATES^ 

By negii- Upon the same principles, where there is found to be actual malice, 

eence ?,nd ,,. , ,. . . . . ., i ,• » 

jiarst. usage or a Wilful disposition to injure another, or an obstinate perseverance 
appmitice. in doing an act necessarily attended with danger, without legaid to 
the consequences; as if a master, by premeditated negligence, or 
harsh usage, cause the : ath of his apprentice, it will be murder. 
Thus, where the prisoner, upon his apprentice returning tc him from 
Bridewell, whither he had been sent for misbehaviour, in a iousy and 
distempered condition, did not take that care of hin which his situa- 
tion required, and which he might have done; not having suffered 
him to be in a bed on account of the vei.riin, but having made him 
lie on the boards for some time without covering, and without com- 
• mon medical care; and the death of the apprentice, in the opinion of 

the medical persons who were examined, was most probably occa- 
sioned by his ill treatment in Bridewell; and the want of care when 
he went home; and the medical persons inclined to think, that if he 
had been properly treated when he came home, he might have recov- 
ered ; the Court under these circurr.staiicss, and others in favour of 
the prisoner, left it to the jury to considbi', whether the death of the 
apprentice was occasioned by the ill treatment he received from his 
master after returning from Bridewell, and whether that ill treatment 
amounted to evidence of malice; in »vhich case they were to find him 
guilty of murder. And in a more modern case, a prisoner was found 
guilty of murder in causing the death of his apprentice, by not provi- 
ding him with sufficient food and nourishment. The prisoner, Charles 
Squire, and his wife, were both indicted for the murder of a boy, who 
v\?as boui 1 as a parish apprentice to the prisoner, Charles; and it 
appeared upon the trial, that both the prisoners had used the appren- 
tice in a most cruel and barbsrous manner, and had not provided him 
with sufficient food and nourishment ; but the surgeon who opened 
the body, deposed, that in his judgement the boy died from debility, 
f.nd for want of proper food and nourishment, and no; from the wouuus, 
&;c., which he had received. Lawrence, J., upon tois evidence, was 
of opinion that the case was defective as to the wife, Pi 't was not her 
f'-ity to provide the apprentice with sufficient food and nourishnient, 
sho being the servanc of her husband, and so directed the jury, who 
acquitted her; but the husband was found guilty and executed. ]&t 
Russ., 426. 
Byg-vage if a man has a beast that is used to do mischief, and he, knowing 
it, sufi^.rs it to g'> abroad, and it l-'lls a man, this has been considered 
by some as manslaughter in the o>vner: and it is agreed by all that 
such a person is guilty of a very gross misdemeanor: and if a man 



LAW OF MAGISTRATES. 299 

purposely turn such an animal loose, knowing its nature, it is with us 
(as in the Jewish law) as much murder as if he had incited a bear or 
a dog to worry people; and this, though he did it merely to frighten 
them, and make what is c uled sport. 1 Russ., 427. 

It is agreed, that no person shall be adjudged by any act whatever Time of 
to kill another, who does not die thereof within a year and a day after 
the stroke receiv^ed, or cause of death admmistered, in the computa- 
tion of which, the whole day upon which the hurt was done is to be 
reckoned the first. 1st Russ., 428. 

Questions may occasionally arise as to the treatment of the wound Treatment 
or hurt received by the party killed. Upon this subject, it has been" 
ruled, that if a man give another a stroke, not in itself so mortal but 
that with good care he might be cured, yet if the party die of this 
wound within the year and day, it is murder, or other species of homi- 
cide, as the case may be : though if the wounds or hurts be not mor- 
tal, and it shall be made clearly and certainly to appear, that the 
death of the party was caused by ill applications by himself or those 
about him, of unv, holesome salves or medicines, and not by the wound 
or hurt, it seems that this is no species of homicide. But when a 
wound, not in itself mortal, for want of picper applications, or from 
neglect, turns to a gangrene or a fever, and that gangrene or fever 
is the immedi.ae cause of the death of the parly wounded, the party 
by whom the wound is given is guilty of murder, or manslaughter, 
according to the circumstances: for though the fever or gangrene, 
and not the wound, be the immediate cause of the death, yet the 
wound being the cause of the gangrene or fever, is the immediate 
cause of the death, causa caiisati. Thus, it was resolved, that if one 
gives wounds to another, who neglects the cure of them, or is disor- 
derly and doth not keep that rule which a person wounded should do, 
yet if he die, it is murder or manslaughter, according to the circum- 
stances; because if the wounds had not been, the man had not died : 
and therefore, neglect or disorder in the person who received the 
wounds, shall not excuse the person who gave them. — lb. 

If a man be sick of some disease, which, by the course of nature, Killing a 
might possibly end his life in half a year, and another gives him a fng^under 
wound or hurt which hastens his death, by irritating and provoking *^'^^'*^^' 
the disease to operate more violently or speedily, this is murder or 
other homicide, according to the circumstances, in the party by whom 
such wound or hurt was given: for the person wounded does not die 
simply ex visitatione Dei, but the death is hastened by the hurt which 



300 LAW OF MAGISTRATES. 

he received ; and it shall not be permitted to the offender to apportion 
his own wrong. 1 Russ., 429. 

4ifA. Of the Malice. 

Malice may Malice may be either express or implied by law. Express malice 
expressor is, when One person kills another with a sedate, deliberate mind, and 
impiie . foinied design, such formed design being evidenced by external cir- 
cumstances discovering the inward intention; as lying in wait, ante- 
cedent menaces, former grudges, and concerted schemes to do the 
party some bodily harm. And malice is implied by law from any 
deliberate, cruel act committed by one person against another person, 
however sudden: thus where a man kills another suddenly, without 
any, or without a considerable provocation, the law implies malice; 
for no person, unless of an abandoned heart, would be guilty of such an 
act upon a slight or no apparent cause. So if a man wilfully poisons 
another; in such a deliberate act the law presumes malice, though no 
particuhir enmity can be proved. And where one is killed in con- 
sequence of such a wilful act, as shows the person by whom it is com- 
mitted to be an enemy to all mankind, the law will infer a general 
malice from such depraved inclination to mischief. And it should be 
observed as a general rule, that all homicide is presumed to be mali- 
cious, and of course amounting to murder, until the contrary appears, 
from circumstances of alleviation, 'excuse, or justification ; and that is 
incumbent upon the prisoner, to make out such circumstances to the 
satisfaction of the Court and jury, unless they arise out of the evidence 
produced against him. It should also be remarked, that, where the 
defence rests upon some violent provocation, it will not avail, howev- 
ever grievous such provocation may have been, if it appears that 
there was an interval of reflection, or a reasonable time for the blood 
to have cooled before the deadly purpose was effected. And provoca- 
tion will be no answer to proof of express malice; so that if, upon a 
provocation received, one party deliberately and advisedly denounce 
vengeance against the other, as by declaring that he will have his 
blood, or the like, and afterwards carry his design into execution, he 
will be guilty of murder; although the death happened so recently 
after the provocation as that the law might, apart from such evidence 
of express malice, have imputed the act to unadvised passion. But 
where fresh provocation intervenes between preconceived malice and 
the death, it ought clearly to appear that the killing was upon the 
antecedent malice; for if there bean old quarrel between A. and B., 
and they are reconciled again, and then, upon a new and sudden 



LAW OF MAGISTRATES. 301 

falling out, A. kills B., this is not murder. It is not to be presumed 
that the parties fought upon the old grudge, unless it appear from the 
whole circumstances of the fact : but if upon the circumstances, it 
should appear that the reconciliation was but pretended or counterfeit, 
and that the hurt done was upon the score of the old malice, then such 
killing will be murder. Where knowledge of some fact is necessary 
to make a killing murder, those of a party who have the knowledge, 
will be guilty of murder, and those who have it not, of manslaughter 
only. If A. assault B., of malice, and they fight, a,nd A's servant come 
in aid of his master, and B. be killed, A. is guilty of iDurder; but the 
servant, if he knew not of A's malice, is guilty of manslaughter only. 
1 Russell, 421. 

As to what provocation will be sufficient to reduce the killing to 
manslaughter, we have already spoken under that head. 

bth. Aiders, Abettors, and Accessaries. 

In order to make an abettor to a murder or manslaughter principal 
in the felony, he must be present, aiding and abetting the fact com- 
mitted. The presence, however, need not always be an actual 
standing by v/ithin sight, or hearing of the fact; for there may be a 
constructive presence, as when one comm.its a murder, and another 
keeps watch or guard at some convenient distance. But a person 
may be present, and, if not aiding and abetting, be neither principal 
nor accessary : as, if A. happen to be present at a murder, and take 
no part in it, nor endeavor to prevent it, or to apprehend the murderer, 
this strange behaviour, though highly criminal, will not of itself render 
him either principal or accessary. 1st Russell, 431. 

If several persons are present at the death of a man, they may be Persons 
guilty of different degrees of homicide, as one of murder and another be guilty of 
of manslaughter; for if there be no malice in the party striking, but degrees of 
malice in an abettor, it will be murder in the latter, though only man- 
slaughter in the former. So that if A. assault B., of malice, and they 
fight, and A's servant come in aid of his master, and B. be killed, A. 
is guilty of murder; but the servant, if he knew not of A's malice, is 
guilty of manslaughter only. — Ibid. 

He that counsels, commands, or directs, the killing of any person, of accessa- 
and is himself absent at the time of the fact being done, is an acces- [hf fact?*^^ 
sary to murder before the fact. And though the crime be done by 
the intervention of a third person, he that procures it to be committed 
is an accessary before the fact; so that if A. bid his servant hii-e some- 
body, no matter whom, to murder B., and furnish him with money 
for that purpose, and the servant procure C, a person whom A. never 



302 . LAW OF MAGISTRATES. 

saw or heard of, to do it, A. is an accessary before the fact. If A. 
advise B. to kill another, and B. does it in the absence of A., in such 
case B. is principal, and A, is accessary in tue murder. And this 
holds, even though the party killed be not in rerum natura at the time 
of the advice given: so that if a man advise a woman to kill her child 
as soon as it shall be born, and she kills it when born in pursuance of 
such advice, he is an accessary to the murder. — 1st Russell, 4*^2. 
Cases where It is a rule, that he who in anywise commands or counsels another 

the Clime is • i r i • n i i 

the direct to commit an unlawtul act, is accessary to all that en jes upon *hat 
ate effect of Unlawful act. Thus, if A. commands B. to beat C, and B. beat him, 
niandor SO that he dies, A. being absent, B. is guilty of murder as princ'r»al, 

counsel of »»• ^i -i-i •■•••i 

the acces- and A. IS accessary; the crime havuig been committed in the execu- 
^^'^^' tion of a command which naturally tended to endanger the life of 

another. And a fortiori, therefore, if a man command another to 
rob any person, and he in robbing him kill him, the person giving 
such command is as much an accessary to the murder, as to the rob- 
bery which was directly commanded: and it is also said, that if one 
command a man to rob another, and he kill him in the attempt, but 
do not rob him, the person giving such command is guilty of the mur- 
der, because it was the direct and immediate effect of an act done in 
execution of a command to commit a felony. — Ibid. 
Cases whtrre But if the Crime committed be not the direct and immediate effect 

the crime is ^ , ,. „, iti i 

not the direct of the act done m pursuance of the command, or it the act done vanes 
ate effect of in substance from that which was commanded, the party giving the 

liie command i i i i i • 'mi ■/» i 

or counsel of Command cannot be deemed an accessary to the crime. Ihus it A. 

ciiargedaa persuade B. to poison C, and B. accordingly give poison to C, who 
eats part of it, and gives the rest to D., who is killed by it, A. is guilty 
of a great misdemeanor only in respect of D., but is not an accessary 
to his murder; because it was not the direct and immediate effect of 
the act done in pursuance of the command. And if A. counsel or 
command B. to beat C. with a small wand or rod, which would not in 
all human reason cause death, and B. beat C. with a great club, or 
wound him with a sword, whereof he dies, it seems that A. is not 
accessary; because there was no command of death, nor of anything 
that could probably cause death; and B. departed from the command 
in substance, and not in circumstance. But if the crime committed, 
be the same in substance with that which was commanded, and vary 
only in some circumstantial matters; as where a man advises another 
to kill a person in the night, and he kills him in the day; or to kill 
him in the field, and he kills him in the town; or to poison him, and 
he stabs or shoots him; the person giving such command is slall acces- 



accessary. 



LAW OF MAGISTRATES. 303 

sary to the murder: for the substance of the thing commanded was 
the death of the party killed, and the manner of its execution is a 
mere collateral circumstance. 1st Russell, 433. 

6th. Place of Trial. 

If any person shall be feloniously struck, wounded, poisoned, or Trials for 
otherwise injured, in one district, and die thereof in another, any mansiaugh- 
iti ]L;ioiiio»" or indie Xiant thereon, found by jurors of the county ortjie ' 
district where the death shall happen, whether it be found before, the c^naincases! 
coroner, upon the sight of such dead body, or before the justices of 
peace, or other justices, or commissioners lawfully authorized to 
inquire of such offences, shall be as good and effectual in the law, as 
if the stroke, wound, poisoning, or other injury had been committed 
and done in the same county or district where the party shall die; and 
the person or persons guilty of such striking, wounding, poisoning, or 
other injury, and every accessary thereto, either before or after the 
fact, shall be tried by and before the same court, and (if convic'.;:!,) 
punished in the same mode, manner and form, as if the deceased had 
suffered such striking, wounding, or other injury, in the same county 
or district where he, she or they, thereof died. 5th S. L., 231. 

Under which statute it hath been held, that in case of striking of 
one slave by another, in one parish, and the death occurring in ano- 
ther, that the trial must be before the magistrates of the Parish where 
the death occurred. State Ex Rel. vs. Toomer, et ah, Cheves, 106. 



HgRSE STEALING. 

Any person who shall be indicted and found guilty of stealing a , 

•' ' to J o Horse steal - 

horse, mare, gelding, colt, filly, mule or ass, shall, for the first offence, ""g pup'shed 

' '& o' J J' > > 'by whipping. 

receive not less than fifty lashes, nor more than two hundred, to be 
inflicted at such times as the judge before whom he may be tried shall 
think proper, and also be fined and imprisoned at the discretion of the 
Co'irt; and for the second offence, shall be adjudged and deemed 
guilty of felony, and suffer death without benefit of clergy. 

All Acts or parts of Acts, inconsistent with this Act. are hereby 
rei^eded. 6th S. L., 413, sec. lit and 2d. 

F'le prisoner was indicted for horse stealing. It appeared, in evi-ifan'hostJer 
dence, that he was a hostler to Mr. Tims, inn keeper at the Ten Mile ^reand 
House, and that in the night time, he went off, and took with him the ahorse, take 
horse, '^n behalf of the prisoner it was contended, that this was only intenuo' ^° 



304 LAW OF MAGISTRATES. 

convert him a breach of trust, and not a felony; because he had the care and 
use, it is charge of the horse, and by this means gained a possession by the 
oiheiwise, consent of the owner; consequently, there could be no felony coinmit- 
takeiiin/to ted, as he came legally and fairly into the prisoner's custody. State 

use him, and o u' -i ^ r> r> ..-« 

then return Vs. belt, 1st Bay, 242. 

t™iauer"''" TiiE CouRT. — The intention of the prisoner in taking the horse, is 

onty a breach ^^ matter for the consideration of the jury; whether it was done animo 

"^"^ ■ furandi, or not. As to the law, it is clear that the bare charge or 

care of a horse, does not change the legal possession out of the master. 

If the prisoner took him away with intent to steal or convert him to 

his own use, it is felony, notwithstanding he had the care of him as 

hostler. But it is only a breach of trust, if he take him to use him, 

and then return him again. — Ibid. 

So also, where the party gets possession with a felonious intent, by 

delivery from the owner or his agent. 

Larceny may be committed of goods obtained from the owner by 

delivery, 1" it be done animo furandi. State vs. Gorman, 2 N. & 

Mc, 90. 



HOUSE BREAKING. 

Any person All and every person or persons that shall, at any time, from and 
robbing^a " after the first day of March, in the year of our Lord, 1601, rob any 
house,"^ other person, or shall feloniously take away any goods or chattels, 
there?s"any being in any dwelling house, the owner or any other person being 
d^cTor^""' therein, and put in fear, or shall rob any dwelling house in the day 
mute!"s^haii time, any person being therein, or shall comfort, aid, abet, assist, 
dergy*.^ counscl, hire, or command any person or persons to commit any of the 
said offences, or to break any dwelling-house, shop, or ware-house, 
thereunto belonging, or therewith used, in the day time, and felo- 
niously take away any money, goods or chattels, of the value of five 
shillings or upwards, therein being, although no person shall be within 
such dwelling-house, shop, or warehouse; or shall counsel, hire, or 
coinmand any person to commit any burglary, being thereof convicted 
or attainted, or being indicted thereof, shall stand mnto^ or will not 
directly answer to the indictment, or shall peremptorily challenge 
above the number of twenty persons returned to be of the jury, shall 
not have the benefit of his or their clergy. 2d S. L., 531, sec. 1st. 



LAW OF MAGISTRATES. . . 305 

Whereas, of late years, divers lewd and felonious persons, under- An Act, that 
standing that the penalty of the robbing of houses in the day time (no robbing any 

,,,,, ,. _, ii\. 1 house in tlie 

person b6ing m the house at the time of the robbery) is not so penal day time, 
as to commit or do a robbery in any house, any person being therein person be 
at the time of the robbery; which hath and doth embolden divers be admitied 
lewd persons to watch tbeir opportunity and time to commit, and do benefit of nis 
many heinous robberies, in breaking and entering divers honest per- *^ ^'^' 
sons houses, and especially of the poorer sort of people, who by rea- 
son of their poverty, are not able to keep any servant, or otherwise to 
leave any body to4ook to their house, when they go abroad to hear 
divine service, or from home to follow their labor to get their living, 
which is to the hinde ranee and loss of good subjects, and the utter 
impoverishing of many poor widows, sole women, and other people. 

Beit therefore enacted, That if any person or persons, after the ^^ ^^j^,, „j,j 
end of this present session of parliament, shall be found guilty, and ^,^^.^^'"^^1,^^^ 
convicted by verdict, confession or otherwise, according to the laws [,ou'^se"ji,''ti,e 
of this realm, for the felonious taking away, after the Feast of Easter ^^y^''"^'°|! 
how next ensuing, in the day time, of any money, goods or chattels, 5s- 
being of the value of 5s. or upwards, in any dwelling house, or houses, 
or any part thereof, or any out-house or out-houses belonging and 
used to and with any dwelling-house or houses, although no person 
shall be in the said house or outhouses at the time of such felony 
committed; then such person and persons shall not be admitted to the 
benefit of his or their clergy, but shall be utterly excluded thereof. 
2d S. L., 505, sec. 1 and 2. 

Questions which may arise under these statutes, as to what is a 
dwelling house, must be decided by the rules laid down under the 
head of burglary. Wj3 refer to the same head as to the reward for 
detecting a house breaker. 



HUE AND CRY, 

Is the old common law process of pursuing, with horn and with 
voice, all felons, and such as have dangerously wounded another. We 
insert here the Statute 27 Elizabeth, c. 9, relating to hue and cry, 
which statute is of force in this State, though wholly inapplicable and 
out of use. 

39 



306 LAW OF MAGISTRATES. 

An Act for the following of Hue and Cry. 
Hue and cry, Whereas, by two ancient statutes, the first made in the parliament 
whom to be holden at Winchester, in the 13th year of the reign of King Edward 
thepenaiiy, the 1st, and the other in the 28th year of the reign of King Edward 
the 3d. it was, for the better repressing of robberies and felonies, 
(amongst other things) enacted to this effect, that if the country do 
not answer" for the bodies of such malefactors, that then the pain 
should be such, that is, to wit, that the people dwelling in the country 
shall be answerable for the robberies done, and the damages, so that 
the whole hundred, where the robbery shall be done, with the fran- 
chises which are within the precinct of the same hundred, shall 
answer the robberies done; and if the robbery chance to be d^ne in 
The effect of ^h® ^^^'^^'"^ ''^^^^^^""^'^^^^' ^^^^ then both the hundreds together, 
t.iuciifn'<r with the franchises within the precinct of them, shall be answerable, 
for robbery. ^^ ^^ ^^^ ^^^^ *^" Several statutes it doth more at large appear. 2d 

' S. L., 501. 
Several Fcrasmuch as the said parts of the said several statutes being 

ces'en^'ing' of late days more commonly put in execution, than heretofore they 
Btatutes?^^' have been, are f^und, by experience, to be very hard and extreme 
MiTcryf "^to many of the Queen's majesty's good subjects, because by the same 
statutes they do remain charged with the penalties therein contained, 
notwithstanding their inability to satisfy the same, and though they do 
as much as in reason might be required, in pursuing such malefactors 
and offenders, whereby both large scope of negligence is given to the 
inhabitants und residents in other hundreds and counties, not to pros- 
ecute the hue and cry made, followed, and brought unto them, by 
reason they are not chargeable for any portion of the goods robbed, 
nor with any damages in that behalf given ; and also great encourage- 
ment and emboldening is likewise given unto the offenders, to commit 
daily more felonies and robberies, as seeing it in manner impossible 
for the inhabitants and resiants of the said hundred and franchises 
wherever Lhe robbery is committed, to apprehend them without the 
aid of the other hundreds and counties adjoining; and for that also the 
party robbed having remedy by tha aforesaid statutes, for the recover- 
ing of his goods robbed, and damages, against the inhabitants and 
resiants of the hundred wherein the robbery was committed, is many 
times negligent and careless in prosecuting and pursuing the said 
malefactors and offenders : our sovereign lady, the Queen's majesty, 
not v.illing, therefore, that her people should be impoverished by any 
such pain or penalty which should be Lard or grievous to them, and 
having special regard to abate the power of felons, and to repress 



LAW OF MAGISTRATES. 307 

felonies, doth for remedy hereof, that the inhabitants and resiants of inhabitants 

11/ 1 1 /> 1 • ■ • 1 • 1 • of the hun- 

every or any such hundred, (with the franchises within the precinct dred, where 

therefSfe) wherein negligence, fault or defect of pursuit, and fresh shaii not be 

pursui', after hue and cry made, shall happen to be, from and after answer half 

forty days next, after the end of this present session of parliament, 

shall answer and satisfy the one moiety, or half of all and every such 

sum and sums of money and damages, as shall by force or virtue of the 

said statutes, or either of them, be recovered or had against or of the 

said hundred, with the franchise therein, in which any robbery or 

felony shall at any time hereafter be committed or done : and that 

the same moiety shall and may be recovered by action of debt, bill. The moiety 

plaint, or information, in any of the Queen's Majesty's Courts of ^covered by 

record at Westminster, by and in the name of the clerk of the Peace tlJepgac'^"' 

for the time being, of or in every such county within this realm, where 

any such robbery and recovery by the party or parties robbed shall 

be, without naming the christian name or surname of the said clerk 

of the Peace; which moiety so recovered shall be to the only use and 

behoof of the inhabitants of the said hundred, where any such robbery 

or felony shall be committed or done. — lb. 

If any clerk of the Peace, of or in any county within this realm. The death or 
shall at any time hereafter commence or prefer any such suit, action the'cierifof 
or information, and shall, after the same so sued, commenced orshaUnoT 
preferred, happen to die or be removed . out of his office, before suu.^ 
recovery and execution had, that yet no such action, suit, bill, plaint 
or information, sued, commenced or preferred, shall, by such displa- 
cing or death, be abated, discontinued or ended; but that it shall and 
may be lawful to and for the clerk of the Peace next succeeding in 
the said county, to prosecute, pursue, and follow all and every such 
action, bill, plaint, suit and information, for the causes aforesaid, 
so hanging and depending, in such manner and form, and to all 
intents and purposes, as that clerk of the Peace might have done 
which first commenced or preferred the said suit, bill, plaint or infor- 
mation. — lb. 

And although the whole hundred, where such robberies and 
felonies are committed, with the liberties within the precinct thereof, 
are by the said two former statutes charged with the answering to 
the party robbed his damages, yet, nevertheless, the recovery and 
execution by and for the party or parties robbed, is had against one, 
or a very few persons of the said inhabitants, and he and they so 
charged, have not heretofore by law had any mean or way to have 
any contribution of or from the residue of the said hundred, where 



308 LAW OF MAGISTRATES. 

the said robbery is committed, to the great impoverishment of them 
* against whom such recovery or execution is had. — lb. 

A remedy For remedy whereof, be it eiiacteJ, that after execution of daihages, 
against by the party or parties, had, it shall and may be lawful (upon com- 

whom recov- .. iii • i"i\ in • • 

ery and exe- plaint made by the party or parties so charged) to and for two justices 
had, to have Of the peace (whereof one to be of the quorum) of the same county 
■ inhabiting within the said hundred, or near unto the same, v/here any 
The taxation such execution shall be had,. _ to assess and tax rateably and propor- 
bythe%stic"!tionably, according to their discretions, all and every the towns, 
parishes, villages and hamlets, as well of the said hundred, where any 
such robbery shall be committed, as ©f the liberties within the said 
hundred, to and towards an equal contribution to be had and made 
for the relief of the said inhabitant or inhabitants, against whom the 
party or parties robbed before that time had his or their execution; 
and that after such taxation made, the constables, constable, head- 
boroughs or head-borough of every such town, parish, village and 
hamlet, shall, by virtue of this present Act, have full power and 
Selnhabi-*^ authority within their several limits, rateably and proportionably, to 
conslabies"^ tax and assess according to their abilities, every inhabitant and 
dweller in every such town, parish, village and hamlet, for and 
towards the payment of such, taxation and assessment, as shall be so 
made upon every such town, parish, village and hamlet as aforesaid, 
by the said justices; and that if any inhabitant of any such town, 
parish, village or hamlet, shall obstinately refuse and deny to pay the 
said taxation and assessment, so by the said constables, constable, 
and s^a'ie'of' head-boroughs or head-borough taxed and assessed, that then it shall 
default 'of and may be lawful to and for the said constables and head-boroughs, 
pa>men. and every of them, within their several limits and jurisdictions, to 
distrain all and every pers6n and per^sons, so refusing and denying, by 
his and their goods and chattels; and the same distress to sell, and 
the money thereof coming to retain lo the use aforesaid; and if the 
goods or chattels so distrained and sold shall be of more ralue than 
the said taxation shall come unto, that then the residue of the said 
money, over and above the said taxation, shall be delivered unto the 
said person" or persons so distrained. — lb. 
Constables -^^^ ^^^ ^""^ every the said constables and head-boroughs, after that 
^aii deliver jj^gy have within their several limits and jurisdictions, levied and 

the money •' •• ' 

collected to collected their said rates and sums of money so taxed, shall, within 

the justices. - j i 

ten days after such collection, pay and deliver the same over unto 
the said justices of peace, or one of them, to the use and behoof of the 
said inhabitant or inhabitants for whom such rate, taxation and assess- 



LAW OF MAGISTRATES. 309 

ment shall be made and had as aforesaid; which money, so paid, shall 
by the justices or justice, so receiving the same, be delivered over %> 
(upon request made) unto the said inhabitant or inhabitants, to whose 
use the same was collected. — Ibid, 

And the like taxation, assessment, levying by distress and pay- Levying of 
ment as aforesaid, shall be had auJ done within every hundred where tioQintiie 
default or negligence of pursuit and fresh suit shall be, for and to the where 
benefit of all and every inliabitant and inhabitants of the same hun- pursuit 
dred, where such default shall be, that shall at any time hereafter, by 
virtue of this present act, have any damages of money levied of them, 
for or to the payment of the one moiety, or half of the money reco- 
vered against the said hundred, where any robbery shall be hereafter 
committed. — Ibid. 

Provided, That where any robbery is or shall be hereafter com- j^^ penalty 
mitted by two or a greater numl^er of malefactors, and that it happen ^f^t^l """^ 
any one of the said offenders to b« apprehended by pursuit, to be made °^®"nf'^^''^ ' 
according to the said former mentioned laws and statutes, or accord- 
ing to this present Act, that then, and in such case, no hundred or 
franchise shall in any wise incur or fall into the penalty, loss, or forfei- 
ture mentioned, either in this present Act, or in any of the said former 
statutes, although the residue of the said malefactors shall happen to 
escape, and not be apprehended; any thing in this statute, or in the 
said former statutes to the contrary notwithstanding. — Ibid. 

Provided also, That no persoa or persons hereafter robbed, shall xhe suit 
take any benefit by virtue of any of the said former statutes, to charge commenced 
any hundred where any such robbery shall be committed, except he yearaVteT 
or they so robbed, shall commence his or their suit cr action within *^^'^'' ^^' 
one year next after such robbery so to be committed. — Ibid. 

No hue and cry, or pursuit hereafter to be done or made by i„ wiiat sort 
the ct)untry, or inhabitants of any hundred, shall be allowed and taken i'nd pursuit 
to be a lawful hue and cry or pursuit upon or after an;y the said shaube' 
felons or offenders, except the same hue and cry or pursuit be done ™^'^®' 
and made by horsemen and footmen; any usage or custom to the con- 
trary notwithstanding — Ibid. 

No person or persons that shall hereafter happen to be robbed, shall ^j, ^ j 
have or maintain any action, or take any benefit by virtue of the said '?''*'s<i ^^^^^ 

-I ' J J give notice 

two mentioned statutes, or either of them, except the same person or '{'*"'.®9['°' 
persons, so robbed, shall, with as much convenient speed as may be, ^^"t^o'"^'""^ 
give notice and intelligence ot the said felony or robbery so committed, 
unto some of the inhabitants of some town, village, or hamlet, near 
unto the place where any such robbery shall be committed; nor shall 



310 LAW OF MAGISTRATES. 

bring or have any action upon and by virtue of any of the statutes 

S aforesaid, except he or they shall first, within twenty days next, before 

such action to be brought, be examined upon his or their corporal 

The party oath, to be taken before some one justice of the peace of the county 

examined where the robbery was committed, inhabiting within the said hundred 

justice, where the robbery was committed, or near unto the same, whether he 

knew any of Or they do know the parties that committed the said robbery, or any 

of them; and if upon such examination it be confessed that he or they 

do know the parties that committed the said robbery, or any of them, 

that then he or they so confessing, shall, before the said action be 

commenced or brought, enter into sufficient bond, by recoguizance, 

before the said justice before whom the said examination is had, eflec- 

tually to prosecute the same person and persons so known to have 

committed the said robbery, by indictment or otherwise, according to 

the due course of the laws of this realm. — Ibid. 



INFANT. 

By an infant is meant any one, whether male or female, who is 
under the age of twenty-one years. 

1st. When an© for what Crimes they mat be Punished. 
2d. Of the Liability of Infants on Contracts for Necessa- 
ries, AND other Contracts. 
3d. How an Infant may Sue or be Sued. 
4th. Of the Liability of an Infant for Torts. 
5th. Of the Privileges and Disabilities of Infants. 

1st. When they may be Punished, <SfC. 
Infants The full age of man or woman, by the law of England, is twenty- 

miSiemea'-^ one years: under which age, a person is termed an infant, and is 
exempted from punishment in some cases of misdemeanors and 
offences that are not capital. But the nature of the offence will make 
differences which should be observed. Thus, if it be any notorious 
breach of the peace, as a riot, battery, or the like, an infant above 
the age of fourteen is equally as liable to suffer as a person o;'' the 
full age of twenty-one; and if an infant judicially perjure himself in 
point of age, or otherwise, he shall be punished for the perjury; and 
he may be indicted for cheating with false dice, &c.; but if the offence 
charged by the indictment be a mere non-feazance, (unless it be of 



nors. 



LAW OF MAGISTRATES. 311 

such a thing as the party ba bound to by reason of tenure«or the like, 
as to repair abridge, &;c,,) there, in some cases, he shall be privileged 
by his non-age, if under twenty-one, though above fourteen years; 
because laclia, in such a case, shall not be imputed to him. 1 Russ. 2. 

It is said that if an infant of the age of eighteen years be convicted 
of a disseisin w\i\\ force, yet he shall not be imprisoned; and the law 
is said to be, that thoujch an infant at the age of eighteen or even four- 
teen, by his own acts may be guilty of a forcible entry, and may be 
fined for the same, yet he cannot be imprisoned, because his infancy is 
an excuse by reason of his indiscretion; and it is not particubrly men- 
tioned in the statute against forcible entries, that he shall be committed 
for such fine. An infant cannot, however, be guilty of a forcible entry 
or disseisin by barely commanding one, or by assenting to one to his 
use; because every command or assent of this kind by a person under 
such incapacity, is void: but an actual entry by an infant into ano- 
ther's freehold gains the possession, and makes him a disseisor. 
Ibid. 

With regard to capital crimes, the law is more minute and circum- j„fa,nts 
spect; distinguishing with greater nicety the several degrees of age ca'"™"'"^ 
and discretion : though the capacity of doing ill or contracting guilt is cnmes. 
not so much measured by years and days, as by the strength of the 
delinquent's understanding and judgement. But w.thin the age of 
seven years, an infant cannot be punished for any capital offence, 
whatever circumstances of a mischievous discretion may appear; for 
ex presumptione juris, such an infant cannot have discretion; and 
against this presumption, no averment shall be admitted. On the 
attainment of fourteen years of age, the criminal actions of infants are 
subject to the same modes of construction as those of the rest of 
society; for the law presumes them at those years to be doli capaceSy 
and able to discern between good and evil, and therefore subjects them 
to capital punishment as much as if they were ot full age. But daring 
the interval between fourteen years and seven, an infant shall be prima 
facie deemed to be doli incapax, and presumed to be unacquainted 
with guilt; yet this presumption will diminish with the advance of the 
offender's years, and will depend upon the particular facts and circum- 
stances ot his case. The evidence of malice, however, which is to 
supply age, should be strong and clear beyond all doubt and contra- 
diction: but if it appear to the Court and jury that the offender was 
doli capax, and could discern between good and eril, he may be con- 
victed and suffer death. Thus, it is said, that an infant of eight years 
old may be guilty of murder, and shall be hanged for it; and where an 



312 LAW OF MAGISTRATES. 

infant bet\\'een eight and nine years old was indicted and found guilt}' 
of burning two barns, and it appear upoa examination that he had 
malice, revenge, craft and cunning, he had judgement to be hanged, 
and was executed accordingly. — Ibid, 3. 

An infant of the age of nine years, having killed an infant of the 
like age, confessed the felony; and upon examination, it was found 
that he had hid the blood and the body. The justices held that he 
ought to be hanged; but they respited the execution that he might 
' have a pardon. Another, infant, of the age of ten years, who had 
killed his companion and hid himself, was, however, actually haiTged; 
upon the ground that it appeared by his hiding that he could discern 
between good and evil; and malitia siipplet ostatem. And a girl of 
thirteen was burnt, for killing her mistress. — Ibid. 

In the case of rape, the law presumes that an infant under the age 
of fourteen years is unable to commit the crime; and therefore it 
seems he cannot be guilty of it; but this is upon the ground of impo- 
tency rather than the want of discretion; for he may be a principal 
in the second degree, as aiding and assisting in this offence as well as 
in other felonies, if it appear by efficient circumstances that he had a 
mischievous discretion. — Ibid. 

The following is an important case, as to tho capability of an infant 
often years old being guilty of the crime of murder; and as to the 
expediency of visitiiog such an offender with capftal punishment. 
Case of At Bury Summer Assizes, 1748, William York, a 'boy often years 

boy'onen ^ of age, was convicted before Lord Chief Justice Willes, for the murder 
of a girl of about five yea,rs of age, and received sentence of death; 
but the Chief Justice, out of regard to the tender yeai-s of the prisoner, 
respited execution until he should have an opportunity of taking the 
opinion of the rest of the judges, whether it was proper to execute him 
or not, upon the special circumstances of the case; which he reported 
to the judges at Sergeant's Inn, in r.iichaelmaa Term following. The 
boy and girl were parish children, put under the care of a parishioner, 
at whose house they were lodged and maintained. On the day the 
murder happened, the man of the house and his wife went out to their 
work early in the morning, and left the children in bed together. 
When they returned from work, the girl was missing, and the boy 
being asked what was becbme of her, answered that he had helped her 
up and put on her clol*hes, and that she was gone he knew not whither. 
Upon this, strict search was made in the ditches and pools of water 
near the house, from an apprehension that the child might have fallen 
into the water. Daring this search, the man under whose care the 



years old. 



LAW OF ]\1AGISTRATES. 313 

children were, observed that a heap of dung near the house had been 
newly turned up; and, upon removing the upper part of the heap, he 
found the body of the child about a foot's depth under the surface, cut 
and mangled in a most barbarous and horrid manner. Upon this 
discovery, the boy, who was the only person capable of committing 
the act, that was left at home with the child, was charged with the 
fact, which he stifly denied. When the coroner's jury met, the boy 
was again charged, but persisted still to deny the fact ; at length, 
being closely interrogated, he fell to crying, and said he would tell 
the whole truth. He then said, that the child had been used to foul 
herself in bed ; that she did so that morning, (which was not true, for 
the bed was searched and found to be clean,) that thereupon he took 
her out of the bed and carried her to the dung heap, and with a large 
knife, which he found about the house, cut her in the manner the 
body appeared to be mangled, and buried her in the dung heap; placing 
the dung and straw that was bloody under the body, and covering il 
up with what was clean; and having so done, he got water and washed 
himself as clean as he could. The boy was the next morning carried 
before a neighboring justice of the peace, before whom he repeated 
his confession, with all the circumstances he had related to the coro- 
ner and his jury. The justice of ♦he peace very prudently deferred 
proceeding to a commitment, until the boy should have an opportunity 
of recollecting himself Accordingly, he warned him of the danger 
he was in, if he should be thought guilty of the fact he stood charged 
with, and admonished him not to wrong himself; and then ordered 
him into a room, where none of the crowd that attended should have 
access to him. When the boy had been some hours in this room, 
where victuals and drink were provided for him, he was brought a 
second time before the justice, and then he repeated his former con- 
fession; upon which he was committed to jail. On the trial, evidence 
was given of the declarations before mentioned to have been made 
before the coroner and his jury, and before the justice of the peace, 
and of many declarations to the same purpose, which the boy made 
to other people after he came to jail, and even down to the day of hia 
trial ; for he constantly told the same story in substance, commonly 
adding that the devil put him upon committing the fact. Upon this 
evidence, with some other circumstances tending to corroborate the 
confessions, he was convicted. Upon this report of the chief justice, 
the judges, having taken time to consider of it, unanimously agreed, 
1st, that the declarations stated in the report were evidence proper 
40 



314 LAW OF MAGISTRATES. 

to be left to the jury; 2(1, that supposing the boy to have been guilty 
of this fact, there were so many circumstances stated in the report, 
which were undoubtedly tokens of what Lord Hale calls a mischie- 
vious discretion, that he was certainly a proper subject for capital 
punishment, and ought to suffer; for it would be of very dangeroits 
consequence to have it thought that children may commit such atro- 
cious crimes with impunity. 1st Russ., 4. 

That there are many crimes of the most heinous nature, such as 
(in the present case) the murder of young children, poisoning parents 
or masters, burning houses, &c., which children are very capable of 
committing, and which they may in some circumstances be under 
strong temptations to commit; and, therefore, though the taking away 
the life of a boy of ten yejfts old might savor of cruelty, yet, as the 
example of that boy's punishment might be a means of deterring other 
children from the like offences, and as the sparing the boy, merely on 
account of his age, might probably have quite a contrary tendency; 
injustice to the public, the law ought to take its course, unless there 
remained any doubt touching his guilt. In this general principle, all 
the judges concurred: but two or three of them, out of great tender- 
ness and caution, advised the chief justice to send another reprieve 
for the prisoner, suggesting that it might possibly appear, on further 
inquiry, that the boy had taken this matter upon himself at the insti- 
gation of some person or other, who hoped by this artifice to screen 
the real offender from justice. Accordingly, the chief justice granted 
on'e or two more reprieves, and desired the justice of the peace who 
took the boy's examination, and also some other persons, in whose 
prudence he could confide, to make the strictest inquiry they could 
into the affair, and report to him. At length he, receiving no farther 
light, determined to send no more reprieves, and to leave the prisoner 
to the justice of the law at the expiration of the last; but before the 
expiration of that reprieve, execution was respited till further order, 
by warrant from one of the secretaries of State; and at the summer 
assizes, 1757, the prisoner had the benefit of His Majesty's pardon, 
upon condition of his entering into the sea service. — lb. 
How far It is said, that an act making a new felony, does not extend to an 

extend to infant under the age of discretion, namely, fourteen years old; and 
infancy! ^hat general statutes which give corporal punishment, are not to ex- 
tend to infants. But this must be understood, where the corporal 
punishment is, as it were, but collateral to the offence, and not the 
direct intention of the proceeding against the infant for his misde. 



LAW OF MAGISTRATES. 315 

meanor; ia many cases of which kind the infant under the age of 
twenty-one shall be spared, though possibly the punishment be enacted 
by parliament. Ibid, 5. 

2d. Of the Liability of Infants on Contracts for Necessaries^ and other 

Contracts. 

For Necessaries. — As to contracts for necessaries, made by infants? 
it is to be observed, that (strictly speaking) all contracts made by 
infants are either void or voidable; because a contract is the act of 
the understanding, which, during their state of infancy, they are pre- 
sumed to want; yet civil societies have so far supplied that defect, 
and taken care of them, as to allow them to contract for their benefit 
and advantage, with power, in most cases, to recede from and vacate 
it when it may prove prejudicial to them ; but in this contract for 
necessaries they are absolutely bound, and this likewise is in benignity 
to infants; for if they were not allowed to bind themselves for neces- 
saries, nobody would trust them, in which case they would be in 
worse circumstances than persons of full age. Therefore, it is 
clearly agreed, that an infant may bind himself to pay for his neces- 
sary meat, drink, apparel, physic, and such other necessaries, and 
likevi'ise for his good teaching and instruction, whereby he may profit 
himself afterwards. This binding means by parol; in fact, for neces- 
saries, if there is not an actual promise, the law implies a promise, 
but the infant will not be bound by any bond, note, or bill, which he 
gives, though for necessaries; therefore a tradesman's best security 
will be the actual or implied promise. With respect to schooling, 
&c., it must be in cases where the credit was given, bona fide, to the 
infant. But where an infant is sub potestate parentis, and living in 
the house with his parents, he shall not then be liable even for neces- 
saries. 2d Tomlins, 183. 

It must appear that the things were actually necessary, and of 
reasonable prices, and suitable to the infant's degree and estate, which 
regularly must be left to the jury; but if the jury find that the things 
were necessaries, and of reasonable price, it shall be presumed they 
had evidence for what they thus find; and they need not find particularly 
what the necessaries were, nor of what price each thing was; also, 
if the plaintiff declares for other things as well as necessaries, or 
alleges too high a price for those things that are necessaries, a jury 
may consider of those things that were really necessary, and of their 



316 LAW OF MAGISTRATES. 

intrinsic value, and proportion iheir damages accordingly. — 
lb. 

If an infant promises another, that if he will find him meat, drink, 
and washing, and pay for his schooling, that he will pay £7 yearly, 
an action upon the case lies upon this promise; for learning is as 
necessary as other things; and though it is not mentioned what learn- 
ing this was, yet it shall be intended what was fit for him, till it be 
shown to the contrary on the other part ; and though he to whom the 
promise was made does not instruct him, but pays another for it, the 
promise of re-payment thereof is good, if it appears that the learning, 
meat, drink, and washing, could not be afforded for a less sum than £7. 
Ibid. 

If an infant be a mercer, and hath a shop in a town, and there buys 
and sells, and contracts to pay a certain sum to J. S., for wares sold 
to him by J. S., to resell, yet he is not chargeable upon this contract, 
for this trading is not immediately necessary ad victtim et vestitutum ; 
and if this were allowed, infants might be infinitely prejudiced, and 
buy and sell, and live by the loss. — lb. 

And as the contract of an infant for wares, for the necessary car- 
rying on his trade, whereby he subsists, shall not bind him, so neither 
shall he be liable for money which he borrows to lay out for necessaries; 
therefore, the lender must, at his peril, lay it out for him, or see that 
it is laid out in necessaries. So that if one lends money to an infant, 
who actually lays it out in necessaries, yet this will not bind the 
infant, nor subject him to an action ; for it is upon the lending 
that the contract must arise, and after that time there could be no 
contract raised to bind the infant, because after that he might waste 
the money, and the infant's applying it afterwards for necessaries will 
\\oi,hy mdXieT ex post facto, entitle the plaintiff to an action. lb., 
184. 

Although an infant shall be liable for his necessaries, yet if he 
enters into an obligation with a penalty for pajlhnent thereof, this 
shall not bind him, for the entering into a penalty can be of no 
advantage to the infant. But a bond or single bill for the exact 
amount of necessaries furnished, will be valid. — lb. 

If an infant becomes indebted for necessaries, and the party takes 
a bond from the infant, this shall not drown the simple contract, 
because the bond has no force. Necessaries for an infant's wife are 
necessaries for him : but if provided only in order for the marriage, 



LAW OF MAGISTRATES. 317 

he is not chargeable, though she use them after. An infant shall be 
liable for the nursing his child. — lb. 

What are necessaries for an infant, is a question of la»v for the 
Court. How much, and of what quality, must depend upon the 
infant's pecuniary circumstances, and of these, the jury are to judge. 
1st M'C. 572. 

Lodging, clothing, food, medicine and education, are necessaries 
to every infant ; such articles, therefore, as come under such heads, 
must be allowed; but liquor, pistols, powder, saddles, whips, bridles, 
fiddles, fiddle strings, &c., are not to be allowed. — Ibid. 

If a contract be made by an infant and an adult, they cannot both 
be sued thereon, but the action should be brought against the adult 
only. 3d Mc, 6. 

An infant who lives with, and is properly maintained by her parents, 
cannot bind herself to a stranger for necessaries; and where daughters 
live with their mother, it should be presumed that they were properly 
maintained by their parent until the contrary be proved: for the mother 
being the best judge of what is necessary for them, should be consulted 
before credit be given them. — Ibid. 

Other Contracts. — As to acts in pais, infants are regularly allowed to 
rescind and break through all contracts in pais, made during minority, 
except only for schooling and necessaries, be they never so much to their 
advantage; and the reason hereofis, the indulgence the law has thought 
fit to give infants who are supposed to want judgement and discretion 
in their contracts and transactions with others, and the care it takes 
of them in preventing their being imposed upon, or overreached by 
persons of more years and experience. 2d Tomlins, 185. 

And for the better security and protection of infants herein, the law 
has made some of their contracts absolutely void: i. e., all such in 
which there is no apparent benefit, or semblance of benefit to the 
infant; but as to those from which the infant may receive benefit, and 
which were entered into with more solemnity, they are only voidable; 
that is, the law allows them when they come of age, and are capable 
of considering over again what they have done, either to ratify and 
affirm such contracts, or to break through and avoid them. — Ibid. 

If an infant draws a bill of exchange, yet he shall not be liable on 
the custom of merchant, but he may plead infancy in the same man- 
ner that he may to any other contract of his. — Ibid. 

But a person is liable on a bill of exchange, accepted after he was 
of age, though drawn while he was an infant. — Ibid. 



318 LAW OF MAGISTRATES: 

Though a promise by an infant will not bind him unless for neces- 
saries, yet he shall take advantage of any promise made to him, though 
the consideration were his promise, when an infant. And an infant 
plaintifThas been allowed to recover on mutual promises of marriage. 
Ibid. 

The trading contract of an infant is not void; but he may enforce it 
at his election. — Ibid. 

Contracts with infants are void or voidable. Those which are void- 
able only impose a qualified obligation, and if the infant, after coming 
of age, elect to perform, it will be enforced against him. 4lh McC. 241 . 

A very slight circumstance shewing his assent to the contract, afler 
the infant comes of age, will confirm the contract. — Ibid. 

If he purchases land, and continue in possession after he comes of 
age; and if he buys a horse, which he retains and uses, after he becomes 
twenty-one, it will amount to a confirmation. — Ibid. 

Where an infant gave his note for a horse, payable to A. or bearer, 
and kept the horse after he became twenty-one, and sold him, it was 
held a confirmation, and that the bearer of the note, to whom it had 
been transferred, might recover it. — Ibid. 

A sale to an infant, by a person of full age, divests the title of the 
latter; nor will his retaining, or aftervi'ards coming into possession of 
the property, as guardian of the infant, authorize him to rescind the 
sale. 1st Bailey, 320. 

The property of a defendant, who has come of age, may be levied 
on whilst it remains in the possession of his guardian: if the latter has 
any claims upon the property, for advances to his ward, his remedy is 
in Equity. — Ibid. 

An infant partner, confirming the contract of partnership after 
coming of age, subjects himself to all the liabilities of the firm incurred 
during his minority: and where an infant partner, after attaining full 
age, transacted the business of the firm, received their monies and 
paid their debts: held, that these acts, unexplained, amounted to a 
confirmation of the partnership, and made him liable for a debt of the 
firm contracted during his infancy, although he was ignorant of the 
existence of the debt at the time of such confirmation, and had, on 
being informed of it, refused to pay it. 2d Hill, 479. 

3^. How an Infant may Sue and be Sued. 

An infant cannot be sued but under the protection, and joining the 
name of his guardian; for he is to defend him against all attacks as 



LAW OF MAGISTRATES. 319 

well by law as otherwise; but he may sue either by his guardian, or 
prochehi amy, his next friend, who is not his guardian. This prochein 
amy may be any person who will undertake the infant's cause: and it 
frequently happens that an infant, hy his prochein amy, institutes a 
suit against a fraudulent guardian. 2d Tomlins, 185. 

An infant is to prosecute a suit by his guardian or best friend, 
though the term used isprochein amy, i. e., next friend; but he cannot 
defend by such next friend, but must defend only by a guardian, 
because the law supposes that when he demands or sues for any thing, 
it is for his benefit. The power for infants to sue by prochein amy, 
was first introduced by the statute Westm. 2. — Ibid. 

If an infant be joijied with others, in suing in the right of another, 
the action may be brought by attorney, for they all make but one 
person in law. — Ibid. 

The plaintiff's attorney should apply to the defendant to name 
a guardian; and if he does not, in six days, the plaintiff* may 
apply to the Court, who will oblige him to do it. — Ibid. 

None but a solvent person should be admitted prochein amy to 
prosecute the action of an infant plaintiff^; but the Court of Appeals 
will not rescind the appointment o[ a prochein amy, whose solvency 
is doubtful: for the person admitted may be removed, at any stage of 
the suit, on proof of his insolvency, and another substituted, unless 
security is given for the payment of costs. 1st Bailey, 123. 

After pleading to the merits, in an action brought by an infant, 
who declares by guardian, the defendant cannot require proof at 
the trial, that the guardian had been duly admitted. 2d Bailey, 
4G1. 

A plea to the merits is an admission of the plaintiff"'s right to sue 
in the character in which he declares. The objection goes to his 
disability, and cannot be taken advantage of but by plea in abate- 
ment. Secus, where he declares in his own right, and the character 
in which he claims makes part of his title to the thing for which he 
sues. — Ibid. 

One who prosecutes a suit for an infant, as guardian, is concluded 
by a recovery from afterwards claiming the subject-matter of the suit, 
in his own right against the same defendant; and therefore, after the 
liability of the defendant to the infant has been established, evidence 
of a prior right, in the guardian, is irrelevant, and inadmissible. — 
lb. 



320 LAW OF MAGISTRATES, 

If an infant sue without procJiein amy, and the defendant plead 
issuably, he waives the objection of form. The objection of infancy 
in the plaintiff, can only be made by plea in abatement. 1 Spears, 212. 

Where the proof of infancy in the plaintiff comes from the defendant, 
under the general issue, the Court cannot in invilum order a n on suit 
on this proof. — Ibid. 

The case of McDaniel vs. Nicholson, 2 Mills' Const. Rep., 344, 
examined, and held not a case of authority for what it purports to 
decide. — Ibid. 

A judgement irregularly obtained against an infant, may be set 
aside afler he has attained full age, on motion and rule; and the fact 
of infancy must be tried per pais, and not by inspection. 2 Rich., 
324. 

A judgement against an infant, who has not appeared by guardian, 
is erroneous. — Ibid. 

The Court is nut bound, after the infant has attained full age, to 
set aside such a judgement, on the mere fact that he was an infant 
when it was obtained, but may consider lapse of time, the conduct of 
the defendant, and other circumstances, as having confirmed the 
judgement, or rendered the interference of the Court improper; 
semble. — Ibid. 

The proper practice in such cases, seems to be, on affidavit of the 
defendant's infancy, to order a rule to shew cause, on the return of 
which the judgement may be set aside, or an issue made up to try the 
fact of infancy, or such other material fact as the case may present. 
Ibid. 

4:th. Of an InfanVs Liability for Torts. 

An infant is liable in respect of torts committed by him, as for slan- 
der or battery; and in detinue for goods delivered to him for a particular 
purpose, and which he has failed to return. 2d Tomlins, 186. 

But a plaintiff cannot convert an action founded on a contract into 
a tort, so as to charge an infant defendant : therefore, where the 
plaintiff declared at defendant's request he had delivered a mare to 
defendant, to be moderately ridden, and that defendant maliciously, 
&c., rode the said mare so that she was damaged, &c., the Court of 
K. B. held, that defendant might plead his infancy in bar, the action 
being founded on a contract. — Ibid. 

An infant at the age of discretion, is liable in an action on the case, 



LAW OF MAGISTRATES. 321 

for the embezzlement of goods entrusted to hia care. 4th M'Cord, 
387, 

An infant is not bound by a submission to an award, and a note 
given by him, in pursuance of an award, is void, though the matter 
submitted was a tort committed by the infant. 

An infant is liable for torts, but it does not follow that his contracts 
in compensation for torts are valid. 3d M'C, 257. 

bth. Of the Disabilities and Privileges of Infants. 

An infant, it seems, is capable of such offices as do not concern 
the administration of justice, but only require skill and diligence; and 
then he may either exercise them himself when of the age of discre- 
tion, or they may be exercised by deputy; such as the office of jailor, 
&c. 

An infant cannot be a juror. 2d Tomlins, 180. 

No executor or executrix shall take upon himself or herself the 
administration of any will or devise, unless he or she be of the full 
age oftwenty-one years. 6th S. L., 237, sec. 2. 

An infant has five full years after his title to land accrues, within 
which to bring his action, notwithstanding the statute of limitations 
had commenced to run in the time of the ancestor, under whom he 
claimed by descent. Rose vs. Daniel, 2 Tr. Con. Rep., 541). 

Minors (by the Act of 1788) have five years after their coming of 
age, to prosecute their claims, if to land, and four years if to personal 
property; and it is the same, whether at the time of their coming of 
age, they were within or without the State. 

If the plajntiff commence his action for the recovery of land, within 
the five years, and such action be non-suited, discontinued, or in any . 
other way be let fall, he, or any one claiming under him, may, yet 
nevertheless, within two years of such non-suit, &c., commence his 
second action for the recovery of such lands, and it will not be barred 
by the statute. 1st M'Cord, 555. 



INN KEEPERS. 

1st. Of their Liabilities. 
2d. Their Charges. 
3d. Their Remedies for their Bills. 
41 



322 LAW OF MAGISTRATES, 

1st. Of ilieir Liabilities. 

It seems to be clear, that if one who keeps a common inn refuse 
either to receive a traveller, or a guest, into his house, or to find him 
victuals or lodging, upon his tendering him a reasonable price for 
the same, he is not only liable to render damages to the party in an 
action, but may also be indicted and fined at the suit of the king; and 
it is also said, that he may be compelled by the constable of the town 
to receive and entertain such person as his guest; and that is no way 
material whether he have any sign before his door or not, if he make 
it his common business to entertain passengers. 2d Tomlins, 201. 

He is also under an obligation to receive whatever goods his guests 
bring with them, but he is not bound to receive the goods of one who 
proposes to deposit them with him and to go elsewhere; for, as he reaps 
no profit from the deposit of goods, he is not bound to take them under 
his charge. — lb. 

If one comes to an inn, and makes a previous contract for lodging 
for a set time, and doth not eat or drink, he is no guest, but a lodger, 
and so not under the inn-keeper's protection; but if he eats and drinks, 
or pay for his diet, it is otherwise. — lb. 

The inn-keeper shall not be charged, unless there shall be some 
default in him or his servant ; for, if he that comes with the guest, 
or who desires to lodge with him, steal his goods, the host is not 
chargeable; though if an inn-keeper appoint one to lie with another, 
he shall answer for him. Although the guest deliver not his goods 
to the inn-keeper to keep, &c., if they be stolen, he shall be charged; 
but not where the hostler require his guest to put them in such a 
chamber under lock and key, if he suffers them to be in»an outward 
court, &c. — lb. 

An inn-keeper is liable for all losses which might have been pre- 
vented by ordinary care. And, it seems, wherever it be doubtful, 
whether ordinary care has been used or not, the presumption is 
against the bailee. If he do not rebut the presumption of a want of 
ordinary care, arising from the loss of the goods bailed, he is respon- 
sible. Newson ads Axon, 1st M'C, 509. 

Where the horse of a guest was put into a stable, which was very 
open, but which had a bar to one door and • a lock and key to the 
other; although the key was delivered to the servant of the guest, yet 
the inn-keeper is liable for a horse stolen out of his stable; and it 
seems it would have been the same, had the stable been properly 
constructed. 

Ordinary care, is a question for the jury lb. 



LAW OF MAGISTRATES. 323 

2d. Of their Charges. 

An inn-keeper is entitled, in his charges to his guests, to estimate 
not only the iittrinsic value of that which is furnished to them, but to 
include a reasonable compensation in respect of the trouble and risk 
which devolve upon him in the character of inn-keeper, in taking 
charge of the property of his guests. 2d Tomlins, 202. 

If an inn-keeper make a gross overcharge in his bill, the guest 
may tender him a reasonable amount, which will entitle him to a 
verdict in an action, or the inn-keeper may be indicted and fined, for 
it is an extortion. — lb. 

If several persons come together in an inn or tavern, and dine there 
without a special agreement with the inn-keeper, each is liable for 
the whole expense of the dinner, unless it is known to the inn-keeper 
that some came there by invitation of others, in which case such 
persons are not liable even for their own share. — lb. 

3fZ. Of ihe remedies of Inn keepers for their Bills. 

Action on the case on an implied assumpsit, will lie against the 
guests for things had, where the inn-keeper is obliged by law to 
furnish him with meat, drink, &,c. And, when a guest calls for 
any thing at an inn, the inn-keeper may justify detaining the person 
of the guest, or a horse, or other thing, till he is paid his just reckon- 
ing. By the custom of the realm, if a man lies in an inn one night, 
the inn-keeper may detain his horse until he is paid for the expenses; 
but if he gives the party credit for that time, and lets him depart 
without payment, he hath waived the benefit of the custom, and must 
rely on his other agreement, having given credit to the person. 2d 
Tomlins, 203. 

A person brings his horse to an inn, and leaves him in the stable 
there; the inn-keepep may keep him till the owner pay for the keep- 
ing: and, it is said, if he eat out so much as he is worth, the master 
of the inn, after a reasonable appraisement, may sell the horse and 
pay himself. But if one bring several horses to an inn, and after- 
wards takes them all away but one, the inn-keeper may not sell this 
horse for payment of the debt for the others, but every horse is to be 
sold to satisfy what is due for his own meat. — lb. 

The inn-keeper is entitled to feed the horse during its detention, 
and to charge the amount in his account, and that notwithstanding 
an order from the owner not to do so; for otherwise his security would 
fail.— lb. 

If an inn-keeper receives a stage-coach, and from time to time 



324 LAW OF MAGISTRATES. 

sufters the coach and horses to depart without payment, he gives credit 
to the owners, and cannot afterwards detain the coach and horses for 
what was formerly due. — lb. 

A livery-stable keeper, however, may not detain horses for their 
feed as an inn- keeper, for he is not bound to receive them, and when 
he does so, it is on a special contract. But if a party agree not to 
take away horses till they are paid for, and afterwards, under pretence 
of a ride, take them elsewhere, the stable-keeper may re-take and 
keep them till his charge is paid. — lb. 

An inn-keeper has no right to detain the property of his guest, as 
a pledge for what is due him, though he may detain his person; unless 
in the case of a horse, &c., which may be detained for his feeding, 
but not for the meat of his master. 2d Bailey, 452. 

And the privilege of detainer in any case is confined to regular 
inn-keepers, who are bound .to receive guests. — lb. 

Where one has a complete and enforcible lien on the property of 
his debtor, a promise of a third person to pay the debt, on condition 
that the property under the lien is given up, is not within the statute 
of frauds. An inn-keeper has a lien on the goods of his guest, for the 
amount of his bill. 1st Rich., 213. 



INSURRECTION. 

Every slave who shall raise , or attempt to raise, an insurrection 
howtobe 'in this province, or shall endeavor to delude or entice any slave to 
puiis e . ^^^ away and leave this province, every such slave and slaves, and 
his and their accomplices, aiders and abettors, shall, upon conviction 
as aforesaid, suffer death; provided always, that it shall and may be 
lawful to and for the justices who shall pronounce sentence against 
such slave, by and with the advice and consent of the freeholders as 
aforesaid, if several slaves shall receive sentence at one time, to 
mitigate and alter the sentence of any slave, other than such as shall 
be convicted of the homicide of a white person, who they shall think 
may deserve mercy, and may inflict such corporal punishment (other 
than death) on any such slave, as they in their discretion shall think 
fit; any thing herein contained to the contrary thereof in any wise 
notwithstanding. 7th S. L., 402, sec. 17. 



LAW OF MAGISTRATES. 325 

In case the master or other person having charge or government of Penalty for 

' 1 II concealing 

any slave who shall be accused of any capital crime, shall conceal or accused 
convey away any such slave, so that he cannot be brought to trial 
and condign punishment, every master or other person so offending, 
shall forfeit the sum of two hundred and fifty pounds current money, if 
such slave be accused of a capital crime as aforesaid. 7th S. L.,403, 
sec. 20. 

Every person or persons who shall or may be, either directly or persons 

. I'l 1 T • 1 11 •»* connected 

indirectly, concerned or connected with any slave or slaves in a state with slaves 
of actual insurrection within this Stale, or who shall, in any manner i„surrectiona 
or to any extent, excite, counsel, advise, induce, aid, comfort, or assist adjudged 
any slave or slaves to raise, or attempt to raise, an insurrection within fjg'ason. 
this State, by furnishing them with any written or other passport, with 
any arms or ammunition, or munition of war, or, knowing of their 
assembling for any purpose tending to treason or insurrection, shall 
afford to them shelter or protection, or shall permit his, her, or their 
house or houses to be resorted to by any slave or slaves, for any pur- 
pose tending to treason or insurrection as aforesaid, shall, on conviction 
thereof in any Court having jurisdiction thereof, by confession in open 
Court, or by the testimony of two witnesses, be adjudged guilty of 
treason against the State, and suffer death. 5th S. L., 503, sec. 1. 

Any person or persons who shall hereafter write or publish any penalty on 
inflammatory writing or words, or deliver publicly any inflammatory any'lnflam- 
discourse, tending to alienate the affection or seduce the fidelity of"rJt*in"or 
any slave or slaves in this State, shall, on conviction in any Court ^°'^'^' 
having jurisdiction thereof, by confession in open Court, or by the 
testimony of two witnesses, be adjudged guilty of a high misde- 
meanor, and suffer such punishmertt, not extending to life or limb, as 
shall be adjudged by the judge or judges presiding in the Court or 
Courts before whom such trial or trials may be had. — Ibid, sec. 2. 

All persons accused of writing, publishing, or speaking the writing, jj^^ persons 
words or discourses, hereby interdicted, shall be indicted therefor in ("i,"^'^'' '"'^ 
any Court having competent jurisdiction; in which indictment the ^^ainst.^** 
writing, words, or discourse published, held or made, shall be plainly 
and distinctly set forth and charged; and the finding of such indict- 
ment by the grand jury shall be held and taken in law, that the words 
so charged are, under the provisions of this Act, of a seditious and 
treasonable nature, so as to authorize the arrangement, trial and con- 
viction of the person or persons accused: Provided, always, never- 
theless, that the said person or persons, so accused, shall be entitled 
to all the benefits and advantages of others accused of treason, so far 



326 



LAW OF MAGISTRATES. 



Penalty for 
circulating 
papers 
calculated 
to disturb 
the peace. 



Persons 
counselling, 
hiring, or 
aiding. 



only as extends to the production of evidence and right of challenge; 
but not so far as to plead that the offence for which he, she, or they, 
may be indicted, is not herein and hereby sufficiently and explicitly 
set forth. — Ibid, sec. 3. 

If any white person shall be duly convicted of having directly or 
indirectly, circulated or brought within this State, any written or 
printed paper, with intent to disturb the peace or security of the 
same, in relation to the slaves of the people of this State, such person 
shall be adjudged guilty of a high misdemeanor, and shall be fined 
not exceeding one thousand dollars, and imprisoned not exceeding one 
year. And if any free person of color shall be convicted, in the mode 
provided by the law for the trial of such persons, of such offence, he or 
she shall, for the first offence, be sentenced to pay a fine not exceed- 
ing one thousand dollars; and for the second offence, shall be whipped 
not exceeding fifty lashes, and be banished from the State; and any 
free person of color who shall return from such banishment, unless by 
unavoidable accident, shall suffer death without the benefit of clergy. 
7th S. L., 460, sec. 6th. 

If any person or persons shall counsel, aid or hire any slave or 
slaves, free negroes, or persons of color, to raise any rebellion or 
insurrection within this State, whether any rebellion or insurrection 
do actually take place or not, every such person or persons, on con- 
viction thereof, shall be adjudged felons, and suffer death without 
benefit of clergy. 7th S. L., 462, sec. 8. 



INTEREST. 

1st. On what Debts Interest is Recoverable. 
2d. Computation of Interest. 
3d. What will stop Interest. 
4th. Of Usury. 



\st. On what Debts, <Sfc. 

Liquidated Demands. — It is a general rule that any note, acknow- 
ledgement, or memorandum in writing, fixing, with precision, the 
amount due, and the time of payment, will be such a liquidation, as 
will carry interest. Elliott, ads. Minott, 2d McC, 125. 

So an order upon a principal, by his agent, for a sum agreed for in 
favor ofa carrier for freight due, will carry interest from its date. — lb. 



LAW OF MAGISTRATES. 327 

In an action for refusing to comply with the terms of a sale at 
auction, the jury may allow as damages, the difference between the 
sale and resale, and interest thereon. Blackwood & Brenan, ads. 
Leman. Harper, 219. 

The auctioneer may be considered the agent of both parties, and 
his entry a liquidation of the demand. — Ibid. 

Where there is a written lease to pay a certain sum annually, if it 
be not paid annually, it carries interest. Dorrill vs. Stephens, 4th 
McC, 59. 

Where the lease is for a term of years, with an annual rent, if the 
tenant holds over the term, without anything being said as to a new 
contract, ihe law presumes that he holds subject to the same annual 
rent as stipulated in the contract, and if interest is recoverable on the 
annual arrears of the written lease, it will also be recoverable on the 
subsequent annual arrears. — Ibid. 

Where the amount of plaintiff's demand is liquidated in writing, 
and a day appointed for payment, the jury have no discretion to refuse 
interest on the debt from that day. — Ibid. 

Unliquidated Demands. — Unliquidated demands do not bear inter- 
est, except in cases where the defendant has been guilty of fraud or 
imposition. Conyers vs. Magratb, 4th M'C, 392. 

No interest is recoverable on open or book account, or any unli- 
quidated demand previous to the finding of a jury. Skirving vs. 
Executors of Stobo, 2d Bay, 233. 

Interest is not recoverable on an open account, though a time be 
fixed for payment; unless there be an agreement to pay interest. An 
agreement may be implied, as from a promise to give a note, or for 
the usage oftrade. Knight vs. Mitchell, 2d Treadway, 668. 

Interest may be recovered (in an action for money had and receiv- 
ed) on money where there is p roof, or where, from circumstances, it 
can be inferred that it has been employed; or wherever it has been 
obtained by fraud, extortion, oppression, &c. Goddard ads. Bulow, 
1st N. & McC, 45. 

The liquidation of an account by a note, though it should have 
been by the note of a third person, unless expressly received in pay- 
ment, does not destroy the open account. Interest has been too often 
allowed upon a balance of accounts, after it has been acknowledged, 
to be now disputed. Barelli, Torre & Co. vs. Brown & Moses, 1st 
Mc.,449. 

Interest may be recovered upon account for money had and receiv- 
ed; and in all cases of certain or liquidated damages. — Ibid. 



328 LAW OF MAGISTRATES. 

Interest is not allowed on a demand for work or labor done, goods 
sold, or any other account not liquidated in writing, even though the 
money be payable at a day certain. Farrand vs. Bouchell. Harper, 83. 

Interest is not recoverable on a verbal contract, in which the 
defendant agreed to pay the plaintiff 8100, tor rendering a service. 
Farr vs. Farr, 1st Hill, 393. 

Where A. dealt with B., and it was proved to be the general custom 
at B's store, for the customers to allow interest on open accounts for 
the last year, from the first of January, unless paid by a particular 
date thereafter, it was held, that such custom, unless expressly or 
impliedly sanctioned by the party dealing, could not have the effect of 
an agreement to pay interest: Searson ads. Hey ward & Co., 1 
Spear, 249. 

And where an open account, with interest, was recovered under 
such proof, a new trial was ordered, unless the plaintiff entered a 
remitter as to the interest. — Ibid. 

2d. Computation of Interest . 

Where a person has entered into a bond, conditioned for the pay- 
ment of four per cent, interest on certain legacies, till the legatees 
came of age, and as each legatee came of age, to pay him his pro- 
portion of the principal, the legatees are entitled to seven per cent., 
(i. e., the legal interest of this State,) from the time the principal 
camedue. Gaillard ads Ball; 1st N. & M'C, 67. 

Where an action is brought on a bond made in a foreign country, 
and payable there, the interest of that country, and not the interest 
of the country in which the action is brought, is recoverable. — Ibid. 

Where a party contracts to pay a sura of money with interest there- 
on, on a given day, when the day arrives the interest becomes prin- 
cipal, and if the debt be not paid, the aggregate of principal and 
interest then due bears interest for the future. Doig vs. Cathcart; 
3d Rich., 125. 

On a bond conditioned to pay several sums by different instalments, 
"without interest, but with interest if not punctually paid," the money 
not having been punctually paid, it was held, that interest was recov- 
arable from the date of the bond, and not from the time the instalments 
respectively became due; and the penalty became forfeited by the 
non-payment of the first instalment. Wakefield, vs. Beckley, 3d 
M'Cord, 480. 

The condition of the bonds was, " to pay the full and just sum of 



LAW OF MAGISTRATES. 329 

84,000 on or before 31st of January, 1821, v/ith lawful interest to 
be paid annually, to commence from this date : held, that the annual 
interest unpaid became principal and bore interest. Singleton vs. 
Lewis; 2d Hill, 408. 

3d. What will stop Interest. 

A tender of the principal sum due will stop interest. Petrie vs. 
Smith; 1st Bay, 115. 

But it must be an actual tender, and not a mere expression of wil- 
lingness to pay. Hood vs. Huff; 2d M'C, 159. 

The intervention of war will stop interest on a debt due to an alien 
enemy. 3d M'C, 340. 

4th. Of Usury. 
What transactions are Usurious. 
Evidence of. 

What transactions are usurious, and ej&ct thereof. — No person, or 
persons whatsoever, upon any contract which shall be made, 
shall take, directly or indirectly, for loan of any monies, wares, 
merchandises, or other c.v imodities whatsoever, above the value 
of seven pounds for the forbearance of one hundred pounds for 
one year, and so after that rate for a greater or lesser sum, 
or for a longer or shorter time, and so according to that rate 
and proportion, for goods, wares and merchandise lent, to be 
repaid again in goods, wares, commodities, or in monies. 4th S L., 
364, sec. 1. 

Every person lending or advancing money or other commodity 
upon unlawful interest, shall be allov/ed to recover, in all cases what- 
soever, the amount or valuo n-:tually lent and advanced : and that the incase of 

'' ' uaury, prin- 

principal sum, amount or value, so lent or advanced, v»ithout anycipaisum 

r r ^ ' 1 J without in- 

interest, shall be deemed and taken, by the Courts, to be the true '"est may be 

\ recovered , 

Ingal debt or measure of damt^as, to all intents and purposes what- 
soever, to be recovered without cof ts. 6th S. L., 409, sec. 2. 

A note of hand usurious bet\v ee.. :i)e original parties to the trans- 
action, is absolutely null and void even in the hands of an innocent 
indorsee, though the holder may recover against an indorser, on a 
count for money had and received. Payne vs. Trezevant, 2d 
Bay, 23. 

A broker who negotiated the business between borrower and len- 
der, though the payee of the note is a competent witness to prove the 
42 



330 LAW OF MAGISTRATES. 

usurious transaction. Sending notes into market, under pretence of 
sale, to raise money, is a shift to elude the statute, if the money is to, 
be returned. Wherever a return of the money is contemplated by the 
parties, it will constitute a loan, and not a sale. — lb. 

Where a person gave a note of 1500, for valuable consideration, 
payable sixty days after date, and when it became due, in order to 
obtain the further time of sixty days, gave his due bill for fifty dollars, 
and took a renewed note for $500, payable sixty days after date, the 
Court held the transaction usurious, and that the note of $500, as 
well as that for $50, was void under the statute; for, it seems, every 
renewal of a note is a new contract. Motte vs. Dorrell, 1st M'Cord, 
350. 

Where a person borrowed money and gave his note for the amount, 
with lawful interest, and at the same time made a verbal promise to 
pay 5 per cent, more interest, making 12 per cent., the Court held, 
upon an action being brought on the note, that it was usurious and 
void; although it was left to the borrower's honor only, whether he 
would pay more than legal interest. Willard vs. Reeder, 2d M'Cord, 
369. 

Where it is customary to pay interest on open accounts after the 
year expired, and the debtor some time after the expiration of a year, 
gave his note for the amount due, with interest from the expiration 
of the year, it is valid, and not usurious. Dickson vs. Surginer, 2d 
Tr., 501. 

Where a note, tnade bona fide for valuable consideration, is brought 
into market, it may, like any other property, be sold for less than its 
nominal value. Fleming vs. Mulligan, 2d M'C, 173. 

A note endorsed for the accommodation of the maker, who procures 
it to be discounted at an illegal rate of interest, is void as against the 
maker and indorser in the hands of an innocent indorsee; and the fact 
of the note being a renewal for a part of the original contract, it 
being between two of the parties to the original contract, does not 
vary the case. But where a third person, innocent of the usury, takes 
a new note, it is valid. — lb. 

It seems, even if a part of a security be for a valid debt, and part 
for an usurious transaction, the whole will be infected, and this where 
separate notes are given. — lb. 

A note made to raise money, and sent into the market, and sold at 
an usurious discount, is usurious an^ void: bot bona fide notes, and 
other securities, are subjects of legitimate traffic, and where the 



LAW OF MAGISTRATES. 331 

indorser of a note made to raise money at an usurious interest, repre- 
sents to a purchaser, that it is a business note, made for a bona Jide 
consideration, and the maker is present and acquiesces, it is a fraud 
upon the purchaser, and they are both liable. Odell vs. Cook; 2a 
Bail., 59. 

Evidence of usury, — In all cases whatsoever, where any suit or action Borrower a 
shall be brought, sued, or depending in any Court of record in this State, witnees in 
touching or concerning any usurious bond, specialty, contract, promise usury, 
or agreement, or taking of usury or higher rates of interest than is al- 
lowed by this Act, the borrower or party to such usurious bond, special- 
ty, contract, promise or agreement, or from whom such higher rates of 
interest is or shall be demanded, had or taken, shall be, and is hereby 
declared to be, a good and sufficient witness in law to give evidence 
of such offence against this Act; any law, usage or custom, to the 
contrary, in any wise notwithstanding. 4th S. L., 464, sec. 2. 

Provided, always, that if the person or persons against whom such 
evidence is offered to be given, will deny upon oath, in open Court proviso 
to be administered, the truth of what such evidence offers to swear 
against him, then such witness shall not be admitted to be sworn; 
and if any witness or parly shall forswear himselt in any such matten 
he and they so doing, and being thereof lawfully convicted, shall 
suffer all the pains and penalties which by the laws now in force in 
this State ought to be inflicted on persons convicted of wilful and cor- 
rupt perjury. — lb. 

Where usury is set up as a defence to an action, and the plaintiff 
is called upon by the defendant to swear whether the consideration 
of the contract was usurious or not, and does swear that it was not 
usurious, the defendant can not introduce other witnesses to contradict 
the plaintiff. Fulmer vs. Hays, 3d M'C, 256. 

But the plaintiff may be called upon to prove one fact, and other 
witnesses to prove other facts, connected with it, all of which, taken 
together, may establish the usury, which could not be made to appear 
by any one witness. — lb. 

Usury may, sometimes, be inferred from a train of circumstances. 
Ibid. 

Where the defendant, in a case of usury, offered to swear to the 
circumstances of usury, and for that purpose made a statement of the 
facts he would swear to, and the plaintiff makes himself a witness 
under the Act,, it is not enough that he denies generally the truth of 
the statement made by the defendant, he must submit to be examined 



332 LAW OF MAGISTRATES. 

by the defendant in answer to the facts stated by him. Murden vs. 
ClifTord, 4th M'C, 65. 

The Court thought the best practice would be, to require the 
defendant to make his statement in writing, and then to examine the 
plaintiff in answer to the statement. — lb. 

The maker of a promissory note, against whom a judgement has 
been recovered, is a competent witness at common law in a suit by 
the same plaintiff, the lender against the indorser, to prove usury. 
Kechely vs. Cheer, 4th M'C, 397. 

The lender can only be a witness under the Act, w^here the usury 
is offered to be proved by the evidence of the borrower, and where 
the borrower is not a competent witness at the common law. — lb. 

Though a third person sue upon a contract said to be usurious, 
and the defendant offers to swear to the usurj', the lender, though no 
party to the suit, may, under the Act, be examined to deny the usury. 
Harick vs. Jones; 4th M'C, 40'?. 

Notes originally founded on a f^ood consideration, though afterwards 
sold for less than they are nominally worth, do not make a case of 
usury; but if originally discounted for less than their nominal amounts, 
it is usury. — lb. 



JAIL AND JAILORS. 

1st. Who shall be Keepers of Jails. 

2d. What Priso>^ers Jailors bound to receive and keep. 

3d. How they shall be kept. 

4th. How Supported. 

5th. How Delivered. 

6th. Of Escapes. 

7th. OFPuNISHME^■T of Jailor for Maltreatment of Prisoners. 

1st. Who shall be Keepers of Jails. 

By Act of 1839, page 83, see. 41; It shall be the duty of every 

appo^"%nd sheriff in this State, who does not live in the jail, to employ a proper 

Jailor.'''^'"' and discreet person as jailor, who shall live within the same, and who 

is hereby prohibited from using the house for any other purpose than 

that for which it was designated by law; and the sheriff shall appoint 

such jailor in writing, which shall be deposited in the clerk's office. 



LAW OF MAGISTRATES. 333 

The sheriff shall have the custody of the jail of his district, and if he 
appoint a jailor, he shall be liable for him. — Ibid. 

On vacancy in the office of sheriff, the clerk shall take charge of 
the jail and prisoners. 6tii S. L., 185. 

2d. What Prisoners Jailor is bound to receive and keep. 
Every sheriff and jailor is required to receive into, and safely keep^° "^^s^ons 
in such his iail, until delivered by due course of law, any person or committed 

J ' J ' .' r by warrant 

persons who shall be committed thereto, by a warrant, signed by a °^^^^^^^ °^ 
judge, or justice, of this State, or of the United States, under penalty 
for refusal of fine or imprisonment, or both, as may appear proper in 
the discretion of the Court. 7th S. L., 257. 

The jailor is required to receive and confine all runaway slaves. To receive 
ajrested in his district, and committed to his custody. 7th S. L., 430. 

No pauper, idiot, lunatic or epileptic, shall hereafter be confined for Lunatics, etc 
safe keeping, in any jail; and if any such person shall be imprisoned confined in 
by virtue of any legal process, it shall be the duty of the sheriff in""^' ' 
whose custody he may be, to obtain his discharge as speedily as pos- 
sible, and send him forthwith to the Asylum, according to law. Act 
1839, p. 35. 

The several jailors of this State, who may be keepers of the jails, Removal of 
nearest to those that may be destroyed by fire or other accident, are desuuetfon" 
authorized and required to receive and keep the prisoners from such^'^J^''" 
jail, and shall receive the fees provided by law, for the safe keeping 
such prisoners. — Ibid, p. 32. 

The sheriffs or jailors in the several districts of this State, shall rp^jeep 
keep in safe custody all such prisoners as may be committed to them^"^;"""^"^ 
under the authority of the United States, until such prisoners are dis- ^'^'^s- 
charged by due course of law of the United States, under the like 
penalties, as in case of prisoners committed under the authority of 
this State, and upon the terms of the resolution of Congress. A. D., 
1789, vide 5th S. L, 379.— Ibid. 

Sd. How Prisoners shall be kepi. 
Sheriffs and jailors shall keep prisoners for debt, and felons, in sepa- Debtors and 

felons to be 

rate apartments of the jail, and the officer herein offending, shall be i^ept 
liable to an action of the party grieved, and also to an indictment, and 
on conviction, shall be punished as for a misdemeanor. Act 1839, 
page 32. 

By the 31 C. 2, c. 2, if any person shall be committed to any prison 
for any criminal or supposed criminal offence, he shall not be removed 



334 LAW OF MAGISTRATES. 

from thence, unless it be by habeas corpus, or some other legal writ; 
or where he is removed from one prison or place to another, within 
the same county, in order to his trial or discharge; or in case of sud- 
den fire or infection, or other necessity, on pain that the person signing 
any warrant for such removal, and person executing the same, shall 
forfeit, for the first offence, £100, and for the second £200, to the 
part} grieved. S. 9. 

By the 22 and 23 C. 2, c. 20, the.jailor shall not put, keep, or lodge 
prisoners for debt, and felons, together in one room or chamber, but 
they shall be put, kept, and lodged, separate and apart from one ano- 
ther, in distinct rooms, on pain of forfeiting his office, and treble 
damages to the party grieved. S. 13. 

Nevertheless, it seemeth generally in all cases, where a man is 
committed to prison, especially if it be for felony, or upon an execu- 
tion, or but for a trespass, or other offence, every jailor ought to keep 
such prisoner in safe and close custody; safe that he cannot escape, 
and close, without conference with others, or intelligence of things 
abroad. Dalt., c. 170. 

And therefore, if the jailor shall license his prisoner to jail, and for 
a time, and then to come again, or to go abroad with a keeper, 
though he come again, yet these are escapes. Dalt., c. 170. 

And hereupon it is lawful for the jailor to hamper a felon with irons, 
to prevent his escape. 1 H. H., 601; Dalt., c. 170. And it is said 
that a jailor is is in no way punishable for keeping even a debtor in 
irons. 2 Haw., 152. 

But the learned editor of Hale's history observes, that this liberty, 
even in the case of a felon, (much more in the case of a prisoner for 
debt) can only be intended where the officer has just reason to fear 
an escape; as where the prisoner is unruly, or makes any attempt to 
that purpose; but otherwise, notwithstanding the common practice of 
jailors, it seems altogether unwarrantable, contrary to the mildness 
and humanity of the laws of England, by which jailors are forbidden 
to put their prisoners to any pain or torment. And Lord Coke, 2 
Inst., 381, is express, that by the common law it might not be done. 
IH. H.,601. 

And if the jailor keep the prisoner more strictly than he ought of 
right, whereof the prisoner dieth, this is felony in the jailor by the 
common lavv^; and this is the cause, that if a prisoner die in jail, the 
coroner ought to sit upon him; and if the death was owing to cruel 
and oppressive usage on the part of the jailor, or any officer of his, it 



LAW OF MAGISTRATES. 335 

will be deemed wilful murder, in the person guilty of such duress. 3 
Inst., 91; Fost., 321, 322. 

But if a criminal, endeavoring to break the jail, assault his jailor, 
he may be lawfully killed by him in the affray. 1 Haw., 71; 1 H. 
H., 496. For jailors and their officers are under the same special 
protection that other ministers of justice are: and therefore, if in the 
necessary discharge of their duty, they meet with resistance, whether 
from prisoners in civil or criminal suits, or from others in behalf of 
such prisoners, they are not obliged to retreat as far as they can with 
safety, but may freely, and without retreating, repel force with force: 
and if the party so resisting happeneth to be killed, this on the part of 
the jailor, or his officer, or any person coming in aid of him, will be 
justifiable homicide. On the other hand, if the jailor, or his officer, 
or any person coming in aid of him, should fall in the conflict, this 
will amount to wilful murder in all person'sjoining in such resistance; 
it is homicide committed in defiance of the justice of this State. Fost., 
321. 

Every sherifTshall provide, at the expense of the State, a sufficient 
number of blankets for the use of the prisoners confined in their 
respective jails; and every prisoner, so confined on a criminal charge, 
shall be furnished with at least two blankets during the winter season. 
A. A., 1806. 

Aith. How Supported. 

Where any person shall be taken on mesne or final process, in any . 
civil suit, and from inability to pay the debt, demand or damages, or liable for 

. . , , maintenance 

find bail, if committed to jail, and such person has no lands, tone- of debtor, 
ments, goods, chattels, or choses in action, whereby his maintenance 
in jail can be defrayed, the plaintiff or person, at whose instance«6uch 
party shall be imprisoned, shall pay and satisfy the same, and if such 
person, or his attorney, shall refuse or neglect after ten days notice, to 
pay, or give security to pay the same, when demanded, the sheriff or 
jailor, in whose custody such prisoner is, may discharge him from 
confinement. Provided, however, that such prisoner shall, before he 
is discharged, render on oath a schedule of all his estate, and assign 
the same. Act 1839, p. 31. 

The maintenance of prisoners, in all criminal cases, is at the state to pay 

in criminal 

expense of the State, where they are acquitted; or being convicted, are cases. 
discharged from inability to pay costs. 6th S. L., 353. 

4:th. How Prisoners shall he delivered. 
By the 3 H. 7, c. 3, those that have the custody of jails must certify 



336 LAW OF MAGISTRATES. 

the names of all prisoners, to the justices of jail delireiy, in order to 
their trial or discharge, on pain of five pounds. 

And a jailor must not disobr y a writ of habeas corpus for want of 
his fees; bi't the Court will nc turn the prisoner over, till the jailor 
be paid all his fees. 2 Haw., i51. 

5/^. Of Escapes. 

An Escape. If any shoi -ffsha'l permit any prisoner to be without the prison 
walls, without lawi jj authority, it shall be an escape: Provided, never- 
theless, he may and shall discharge a defendant in custt)dy, on mesne 
process in a civil case, when the plaintiff is non-suited. 

refaken on ^^ shall be lawful for the sheriff, deputy sheriff, or jailor, to retake 

aunday, etc. qji Sunday, hi on any other day, and at Court, muster, or any other 
place, any prisoner who has escaped. 

Escapes and If any sheriff, or his deputy, shall permit any prisoner, committed 

therefor. to his custody, on mesne or final process, in any civil action, to go or 
be without the prison walls, if such prisoner has not given the becu- 
rity required by law; or if such security has been given, if any sheriff 
or his deputy suffer such prisoner to go or be at large, out of the rules 
ot the prison, (except by some writ or habeas corpus, or rule ofCouit, 
which rule shall not be granted but by motion in open court,) such 
going and being out of the prison rules, as the case may be, shall be 
adjudged and deemed, as is hereby declared, an escape. 

If any sheriff, or his deputy, shall, after one day's notice in writing, 
given for that purpose, refuse to shew any prisoner committed to his 
charge, to the plaintiff, at whose suit such prisoner was committed, or 
his attorney, such refusal shall be judged to be an escape. 

L'pon an escape, the plaintiff may either proceed against the defen- 
dant to retake him, or against his security; or in case the security 
should prove deficient, against the sheriff, who shall be ultimately 
answerable in damages for such escape. 

Liabiiityfor The Sheriff shall be liable in an action on the case, or of debt, for a 
negligent or vola.itary escape :f a prisoner confined on final process, 
to the extent of debt, interest, and costs. 

On mesne For a voluntary escape on mesne process, he shall be liable to the 
amount that the plaintiff would have been entitled to recover against 
the prisoner, and for a negligent escape, for such damage as the plain- 
tiff may have sustained; provided that the insolvency of t^s prisoner 
shall not mitigate the damages below the amount sutficient to carry 
costs. 

If any sheriff, deputy sheriff, or jailor, having the custody of any 



on final 
process 



process. 



LAW OF MAGISTRATES. 337 

prisoner, who has been found guilty of any offence, shall permit a 
voluntary escape of such prisoner; such sheriff, deputy sheriff, or 
jailor, shall, upon indictment and conviction thereof, suffer the punish- 
ment provided by law, for the offence, of which such prisoner was 
convicted. 

If any sheriff, deputy sheriff, or jailor, having the custody of any 
prisoner charged with any offance, or committed by the order or 
warrant of any competent authority before such prisoner has been 
found guilty or legally discharged, shall permit a voluntary or negli- 
gent escape of such prisoner,'such sheriff, etc., shall, upon conviction 
and indictment thereof, be liable to fine and imprisonment at the 
discretion of the Court ; and for permitting a voluntary escape of any 
prisoner, confined on mesne or final process in any civil suit, shall, on 
•conviction thereof on indictment, be fined and imprisoned at the dis- 
cretion of the Court. Act 1839, 31, 32. 

Qth. Punishment of Jailor for maltreatment of Prisoners. 

By Stat. 14 Ed. 3, c. 10; if any jailor by duress of imprisonment, 
makes any prisoner that he hath in ward, to become an approver or 
appellor against his will, it shall be felony in the jailor. And a 
jailor may be discharged and fined for barbarously misusing his prison- 
ers. 1 Russ., 140. 

If a prisoner dies from cruel and oppressive usage on the part of the 
jailor or any officer of his, it will be deemed wilful murder in the 
person guilty of such duress. The person guilty of such duress wUl 
be the party liable to prosecution, because though in a civil suit the 
principal is answerable in daniages to the party injured through the 
default of the deputy, yet in a capital prosecution, the sole object of 
which is the punishment of the delinquent, each man must answer for 
his own defaults. Ibid, 459. 



JURISDICTION. 

Whether a matter falls within the jurisdiction of a single magis- 
trate, or requires the presence of two, may be seen by reference to 
the particular subject inquired of, viz., for the jurisdiction of a magis- 
trate in Attachment Bail, Causes small and mean, &c., see those 
heads. 

43 



338 LAW OF MAGISTRATES. 

1st. General Jurisdiction and Powers. 

2d. Remedy when Jurisdiction is exceeded. 



Isi. General Jurisdiction. 

Jurisdiction, Every magistrate shall have civil and criminal jurisdiction through- 
duUes!^"" out the judicial district in which he resides, and shall execute all the 
powers and duties heretofore lawfully executed by a justice of the 
quorum; he shall be authorized and required, to command all persons 
who, in his view may be engaged in violations or disorderly conduct, 
to the disturbance of the peace, to desist therefrom; and to arrest any 
such person who shall refuse obedience to his comm.and, and to commit 
to jail any such person who shall fail to enter into sufficient recogni- 
zance, either to keep the peace, or to answer to an indictment, as the 
magistrate may determine. In like manner, he shall arrest and 
commit, if necessary, any person who in his view, shall perpetrate 
any crime or misdemeanor whatsoever. In making any such arrest, 
the magistrate shall have power to command any constable, by- 
standers, or the posse comitalus, as the emergency may require; and 
any person who shall refuse to aid in such arrest, when required by 
the magistrate, shall be liable to indictment, as for a misdemeanor. 
Wherever there shall be an indictment for any offence committed 
in his view, the magistrate shall be the prosecutor, and he shall bind 
in recognizance all necessary witnesses. Act of 1839, 14, sec. 3. 
Duty, under When complaint or oath shall be made before any magistrate, that 
on oath. a felony or misdemeanor has been committed, or that the informant 
has good reasons to believe, and does verily believe the same, or 
when such magistrate is otherwise reasonably satisfied thereof, he is 
hereby empowered and required to issue his warrant, under his hand 
and seal, against the party charged, directed to any law^ful officer 
within this State, wherein shall be plainly expressed the offence 
charged, and supposed time of its commission, commanding him to 
arrest and bring &uch offender before himself, or next magistrate, to 
be further dealt with, as the law may direct, which said warrant 
shall be forthwith delivered to the proper officer, and shall authorize 
the arrest and detention of any person so charged within any district 
in the State; provided, that when issuing such warrant, upon the 
information of another, such magistrate shall accompany the warrant 
with the oath taken, to be subscribed by the deponent, and shall 
require the party demanding the same, to enter into recognizance 
with good surety, to appear and prosecute. lb., sec. 4. 



LAW OF MAGISTRATES. 339 

Any magistrate, according to the established forms of proceeding, offences 
for offences against this State, (at the expense of the United States, jurisdiction 

° ' \ I of U. S. 

and to be tried by such Court of the United States as may have cog- Courta. 
nizance of the offence,) may order the arrest, imprisonment, or bail, 
of a person charged with a crime or offence against the United States, 
alleged to have been committed within this State; arrt! a copy of the 
process shall be returned as speedily as may be into the office of the 
clerk of such Court, together with the recognizances of the witnesses 
for their appearance to testify in the case, which recognizances any 
magistrate may require on pain of imprisonment; and if such offender 
be committed within a district in which the offence cannot be tried, 
the magistrate ordering the arrest shall issue his warrant for the 
removal of the offender and witnesses to the proper district. Acts 
of 1839, 17, sec. 14th. ^ 

2d. Remedy, Sfc. 

A prohibition may issue upon a suggestion, that either the cause 
originally, or some collateral matter arising therein, does not belong 
to that jurisdiction, but to the cognizance of some other Court. State 
vs. Sadler, 2d N. & M'C, 174. 

A prbhibition will not lie to an inferior Court after sentence, unless 
the want of jurisdiction appear on the face of the proceedings. lb. 

Every Court acting clearly within its jurisdiction, in a case legally 
submitted, is independent of all others, to which no appeal is given. 
No prohibition lies to restrain the proceedings of a court martial for 
irregularities, as long as it acts within its jurisdiction. State ads 
Wakely,2d N. & M'C, 410. 

Where a declaration in prohibition set forth, that in the trial of a 
negro slave, by justices and freeholders, under the Act of 1740, 
unauthorized individuals had tried the slaves, and that testimony was 
received on the trial, in opposition to the rules of the common law; 
to which there was a general demurrer; held, that the plaintiff must 
have judgement, 'and a writ of prohibition issue, as the demurrer ad- 
mitted the truth of facts, on which a prohibition ought to be awarded. 
State vs. HuJnall, 2d N. & M'C, 419. 

It is not necessary that the ground on which the prohibition is 
awarded, should arise on the face of the proceedings of the inferior 
Court.— lb. 

Where the matter suggested for a prohibition, appears on the face 
of the proceedings of the inferior Court, an affidavit of the truth of the 



340 LAW OF MAGISTRATES. 

suggestion is unnecessary; where it does not so appear, it is essential 
that the suggestion should be verified by affidavit. — lb. 

The Court of Sessions will prohibit the execution of judgement of 
death, erroneously awarded by a Court of magistrates and freeholders 
against a slave for an offence not capital. A prohibition will be 
granted, wherever an inferior Court, in handling matters clearly 
within its cognizance, transgresses the bounds prescribed to it by law. 
State vs. Ridgell; 2d Bail., 560. 

An action cannot be maintained in the Courts of this State upon a 
decree, obtained in a Court of another State, against a defendant, who 
was not within the jurisdiction of such Court, and who appeared, by 
the proceedings, to have been made a party merely by the publication 
of a rule in a gazette, but had in no way appeared to, or defended the 
suit. Ex'ors of Miller, vs. Miller; 1st Bail, 242. 

The validity of every judgement depends upon the authority which 
the Court possessed over the subject of its adjudication; and it is there- 
fore competent for every tribunal, when a judgement is produced 
before it as the foundation of an action, to inquire in the first place 
into the jurisdiction of the Court, by which it was rendered; and if it 
appear on the face of the proceedings that the Court had no jurisdic- 
tion, its judgement can have no effect, but must be regarded as a 
nullity. — lb. 

To entitle the judgement or decree of a Court of one of the United 
States io full faith and credit in the Courts of the other States, under 
the provisions of the Constitution, it is essential, that such Court should 
have had jurisdiction both of the parties, and the cause.— lb. 

Where a party, charged with a criminal ofience, is brought for 
trial before a Court of Magistrates and Freeholders, and claims*to be 
a white man; if he plead the fact in that Court, and it is tkere deter- 
mined against him, he is concluded by its adjudication; if he desire 
to have the question tried by a jury, his course is to apply, in the 
first instance, to the Court of Sessions for a prohibition. State vs. 
Scott; 1st Bailey, 294. 

Prima facie, every Court possesses the power of judging of its own 
jurisdictionf and where a party pleads to the jurisdiction, the decision 
of even an inferior Court, in favor of its jurisdiction, is, ordinarily, as 
conclusive upon the parties, as its judgement upon a matter confessedly 
within its jurisdiction : the only exception is, where the want of juris- 
diction appears on the face of the proceedings. A party, however, 
is not compelled to submit the question of jurisdiction to the decision 



LAW OF MAGISTRATES. 341 

of the Inferior Court, but may reinovo it to the Superior Court, by 
applying for a prohibition. — Ibid. 

The provision of the Act of 1740, requiring Courts of Magistrates 
and Freeholders for the trial of slaves, to assemble for the trial within 
three days, extended by the Act of 1754 to six days, after the person 
to be tried shall have been apprehended, is directory to the Court, 
and not a limitation of the prosecution; and furnishes no objection to 
the Court's proceeding to the trial after the expiration of the time 
specified. — Ibid. 

Granting or denying a writ of prohibition, is in a great measure 
discretionary with the Court. But it is the duty of the superior 
Courts of law to confine all subordinate jurisdictions to their proper 
bounds; and the question of jurisdiction is to be determined by the 
superior and not the inferior Court. Gray vs. Court of Magistrates 
and Freeholders, 3d McC, 175. 

Generally, a prohibition may be awarded, as well after, as before, 
judgement; but the converse is true in cases where the Court had 
jurisdiction of the matter, but was restrained by some statute, and the 
party, by pleading, admits the jurisdiction. — Ibid. 

A party has a right to appeal, on an application for a prohibition, 
from an order made at Chambers, or on Circuit; and it seems the 
subordinate Court has no right to proceed after notice of such appeal. 

It has been sometimes the practice to grant a prohibition, until the 
determination of the appeal. — Ibid. 



JUSTICE OF THE PEACE AND QUORUM. 
[See Magistrates.] 



LANDLORD AND TENANT. 

1st. Of the Tenancy. 

2d. Of the Rent. [See also Distress.] 

3d. Of the Repairs. 

4th. Of the Determination op the Tenancy, and Getting 

Possession by the Landlord. 
5th. Right of Tenant to Remove. 
6th. Precedents. 



342 LAW OF MAGISTRATES. 

1st. Of the Tenancy. 

Neither the plea of nil hahuit in tenementis, nil demisit, nor rlen 
passu, can be pleaded to covenant for rent on an indenture, for it ope- 
rates as an estoppel. But the estoppel only exists during the contin- 
uance of the occupation of the tenant; and if he be ousted by a 
paramount title, he may plead it. Maverick vs. Lewis & Gibbs, 3d 
M'C., 211. 

An outstanding title, alone, will not discharge a lessee by inden- 
ture. He must be evicfed, or prevented from entering or from 
enjoying the thing demised, by virtue of such title; and he must set 
out the title in his plea, and shew particularly how it arises. — Ibid. 

Where a person was in possession by an outstanding le?se, and 
refused to give possession to the new lessee, it is tantamount to an 
eviction. — Ibid. 

No particular words are necessary to constitute a lease, but there 
must be an interest in the freehold conveyed; and an agreement to 
take charge of a farm and to work on shares is not such an outstand- 
ing lease, as will amount to an eviction, where the person in possession 
under such agreement, refused to deliver possession to the lessee. — lb. 
Leases for All leases or contracts in writing, hereafter to be made between 
one year landlord and tenant, for a longer term than twelve months, shall not 
recorded in be valid in law, against the rights and claims of third persons, unless 
the same shall have been recorded in the office of Mesne Convey- 
ance, at least within three months from the time of the execution 
thereof; nor shall any payment, made in anticipation of rent, for a 
longer time than twelve months, be considered a valid discount 
against the claims and rights of third persons. 6th S. L., 67, 
sect. 1st. 

But where a purchaser has received express notice of an existing 
lease, before making his purchase, such lease, although not recorded, 
conformably to the requisitions of the Act of 1817, will be valid and 
effectual against the conveyance of the purchaser, although the latter 
has been duly recorded. Anderson vs. Harris, 1 Bailey, 315. 
How and Every lease or written agreement hereafter to be entered into, for 

termtoate. the renting and leasing of lands and tenements, shall absolutely and' 
unequivocally end and determine at the period therein stated, without 
it being obligatory on the tenant or the landlord, to give the notice 
now required by law. 6th S. L., 67, sec. 2d. 

In order to put an end to a tenancy from year to year, there must 



LAW OF MAGISTRATES. 343 

be three months notice to quit, ending at the expiraton of the year. 
Godard vs. R. R. Comp., 2 Rich., 346. 

The Acts of 1808 and 1817, have not altered the common law in 
relation to tenancies from year to year, and the necessity of notice to 
quit, before the tenancy can be determined, either by the landlord or 
the tenant. — Ibid. 

Where the lease is for a term of years, veith an annual rent, if the 
tenant holds over the term, without any thing being said as to a new 
contract, the law presumes that he holds, subject to the same annual 
rent as stipulated in the contract, and if interest is recoverable on the 
annual arrears of the written lease, it will also be recoverable on the 
subsequent annual arrears. Dorrill vs. Stephens, 4th M'C, 59. 

No parole lease shall give a tenant a right of possession for a longer no parole , 
term than twelve months from the time of entering on the premises; po^g^s^essiorT^ 
and all such leases shall be understood to be for one year, unless it be twelve ^ 
stipulated to be for a shorter term. ™°°^ ^' 

In the case of Godard vs. R. R. Company, above referred to, it was 
also held, upon review of the English authorities, that a general hold- 
ing, such as was formerly held a tenancy at will, was now established 
as a tenancy from year to year, and such is entitled to notice to 
quit. 

2d. Of the Rent. 

Where a tenant is dispossessed by an enemy, he ought to pay rent 
only for the time he 'peaceably enjoyed, and not for the time he was 
prevented by the casualties of war. Eayly vs. Lawrence, 1st Bay, 499. 

Under a plea of no rent in arrear, the defendant may shew that the" 
liouse was rendered uninhabitable by a storm. It seems, if one rents 
a house for a year, and during the term, it is rendered untenantable 
by a storm, the rent ought to be npportioned according to the time it 
was occupied. Ripley vs. Wightman, 4th M'C, 447. 

All tenants, whether for life or v'^ars, by sufferance or at will, or„ 

' J 1 J 1 Penalty on 

persons coming in under, or bv collusion with them, who shall hold over, tenants for 

i '^ ' ' continuing 

after the ieijal determination of their estates, after demand made in i" possession 

... . . fof ^•"■^^ 

writing, for delivering possession thereof by the person having the months after 
reversion or remainder therein, or his agent, such tenant or other made, 
person holding over, for the space of three months, after such demand, 
shall forfeit double the value of the use of the premises, recoverable 
by action of debt or other legal action, or by distress, as in cases of 
rent recovered and payable quarter yearly. 5th S. L., 565, sec, 3. 
In case any tenant shall give notice in writing, of his intention to 



344 LAW OF MAGISTRATES. 

Penalty on quit the premises, and shall not accordingly deliver up the possession 

tenants for ... , . ■■,,•■, ,. 

not delivering at the time in such notice contained, the said tenant, his executors or 

possession 

according to administrators, shall pay to the landlord double the rent which he 

notic6* 

would otherwise have been liable to pay, which shall be recoverable 
in manner aforesaid. Provided, nevertheless, that nothing herein 
contained shall be construed to give such tenant a right to discontinue 
or determine his tenancy by such notice, in any other manner than 
according to the laws heretofore existing. — Ibid, sec. 4. 

The defendant's intestate sold a plantation, and gave a bond to 
make titles to the purchaser, taking from the latter a promissory note 
for the purchase money. — Reeves vs. McKenzie, 1st Bailey, 497. 

The defendant recovered judgement on the note, but afterv/ards 
agreed to take the land in satisfaction of the judgement, and accepted 
from the purchaser a release of his interest under the bond to make 
titles: he then leased it to the purchaser for a term, reserving a rent 
certain; but in the lease was a condition, that if a certain portion of 
the judgement were paid within a limited time, the lease should be 
void. Subsequently upon a scire facias on the judgement, the jury, 
upon evidence of the release, found for the purchaser on the plea of 
payment. Held, to be no performance of the condition of the lease, 
and that the defendant was entitled to distrain for the rent in arrear. 
Ibid. 

If a rent certain be reserved, subject to a condition to be performed 
by the tenant, the landlord may distrain, notwithstanding the condi- 
tion, unless the tenant shew a performance. — Ibid. 

Where a tenant holds over, for three months or more, after the 
expiration of his term, and notice to quit, he is liable, under the Act 
of 1808, to double rent from the day of notice, and not from the expi-* 
ration of the three months only. — Ibid. * 

Although the English rule, that stray cattle are distrainable for 
rent, where they have been levant et couchant upon the land, may not 
be applicable to the agricultural usages of this country; yet, when the 
cattle, &c. of third persons have been put upon the premises, with the 
consent of the owners, they are liable to distress: nor kvill it make 
any difference, that the landlord was informed, that they did not belong 
to the tenant. Goods left in appropriate public places of deposit, con- 
stitute an exception to the general rule. — Ibid. 

The tenant of a landlord, whose interest has been sold by the she- 
riff (or coroner) is not bound to pay rent, accruing after the sale, to 
his lessor. Moore vs. Turpin & Powers, 1st Spears, 32. 

Where the tenant of a landlord, whose interest has been sold by 



LAW OF MAGISTRATES. " 345 

the sheriff, afterwards, wi(h notice of that fact, paid the whole year's 
rent to his original landlord, it was held that the purchaser was enti- 
tled to recover from the tenant that proportion of the rent which 
accrued after his purchase. Snyder vs. Riley, 1st Spear, 272. 

It has been usual to allow to the purchaser his proportion of the 
rent, measured from the time of his purchase. — lb. 

Where the tenant voluntarily pays the whole rent before due to 
his former landlord, and after notice of his landlord being changed, 
there can be no reason in turnirg the purchaser round to his possible 
remedy against him. If the tenant had received no notice, and had 
paid the rent only at maturity, such might have been the proper 
course. — lb. 

Sd. Of the Repairs. 

Tenants, unless by express contract, have no right to charge their 
landlords for repairs; and this rule, a fortiori, applies, where the 
tenant knew that the premises were out of repair, and covenanted to 
return them in the order in which they were when received. City 
Council vs. Moorhead; 2d Rich., 430. 

A. general covenant to repair is satisfied by the lessee keeping the 
premises in substantial repair; a literal performance of the contract 
is not to be required. 2d Harrison, 1424. 

Under a covenant that the tenant "should and would substantially 
repair, uphold, and maintain" a house, he is bound to keep up the 
inside pai nting. — lb. 

An agreement to leave a farm as he found it, is an agreement to 
leave it in a tenantable repair, if he found it so; and will maintain a 
declaration so laid. — lb. 

A tenant from year to year is only bound to fair and tenantable 
repairs, so far as to prevent waste or decay of the premises, and not 
to substantial and lasting repairs, such as new roofing, &c. — Ibid, 
1425. 

And not being liable to general repairs, he is only bound to use 
the premises in a husband-like manner, but no farther. — lb. 

A tenant, from year to year, of a house, is only bound to keep it 
wind and water tight. A tenant who covenants to repair, is to sustain 
and uphold the premises; but that is not so with a tenant from year 
to year — lb. 

A tenant of a house from year to year, not under any agreement 
44 



346 LAW OF MAGISTRATES. 

to repair, may quit, without previous notice to his landlord, on the 
premises becoming unsafe and useless from want of repairs ; and 
such tenant is not liable, in an action for use and occupation, for any 
rent after the occupation has ceased to be beneficial. — lb. 

Therefore, where the lessee of a house under-let the same at Lady- 
day to A. as tenant from year to year, and before the end of the half 
year put workmen into the house with A's. consent, for the purpose 
of repairing a party- wall, but the inconvenience occasioned thereby 
was so great that A's lodgers quitted the house, and he was obliged 
to take lodgings for his own family elsewhere, and, after paying the rent 
up to midsummer-day, he remained in possession, carrying on his 
trade, till the 5th July, and then quitted without notice to his landlord: 
held, that the latter could not maintain an action for use and occupa- 
tion for the second half year which had thus commenced, the jury 
finding that there had been no beneficial occupation. — lb. 

A tenant of a house, who is bound by agreement to keep it in ten- 
antable repair, may quit without notice in the course of his term, if 
the premises become unwholesome for want of sufficient drainage, 
and they cannot be kept dry without extravagant and unreasonable 
labour and expense on his part. — lb. 

A landlord has no right to enter his tenants premises to repair them, 
without there was some stipulation at the time of letting to that effect. 
Ibid, 1426. 

AtJi. Of the Determinaiton of, (Sfc. 

Tenants ^" ^^® determination of any lease, in writing or by parol, of any 

landlords*^" ^^"^^ and tenements within the State, when the lessee shall hold over 
thereafter, any two magistrates of the district where the same may 
be situated, are authorized and required, on the complaint and due 
proof thereof by any lessor, his heirs or assigns, to place the names 
of twenty four neighboring freeholders in a box, and from them draw 
the names of eighteen, and shall thereupon issue their warrant in the 
nature of a summons, directed to the sheriff, or any constable of the 
district, commanding such officer to summon the said eighteen free- 
holders to attend at a certain time, within four days, and at a place 
appointed; and from the said eighteen freeholders so summoned, 
twelve shall be drawn in the same manner, who shall be empanelled 
to try the facts; provided, that if from the said eighteen so summoned, 
the number of twelve cannot from any cause be had, the magistrates 
are authorized to complete the number from the remainder originally 



LAW OF MAGISTRATES. 347 

selected; and the said magistrates shall also summon the said lessee, 
or any other person claiming or coming into possession under him, at 
the same time, and in the same way, likewise to appear before them 
to shew cause, if any such lessee or other person may have, why 
possession of the premises should not be forthwith restored to such 
lessor, his heirs or assigns ; and if, upon hearing the case, they shall 
be satisfied that the complainant is entitled to the possession of the 
premises in qu^tion, they shall so find; whereof the said magistrates 
shall make a record, and shall thereupon issue their warrant, directed 
to the sheriff' of the district, commanding him forthwith to deliver to 
such lessor, his heirs or assigns, full possession of the premises, and 
to levy all expenses incurred, of the goods and chattels of the lessee 
or other person in possession, as aforesaid. Act ofl839, p. 21, 
sec. 23. 

We have seen, by the Act of 1817, that a lease may be determined 
by its own limitation without notice to quit, except in case of a tenancy 
from year to year, in which case, according to the case above cited, 
three months notice is required. It may also be determined by for- 
feiture. 

1st. For making alterations of the premises. 

2d. For non-payment of rent, or non-performance of other covenants. 

For making alterations. — It shall not be lawful for any tenant to tenant not 
make alterations, or remove buildings, erected upon the leased prem- ^'°^^*'*' '" 
ises, without permission first had in writing, under pain of forfeiting ^"^'■^''''°*' 
the residue of the unexpired term of said lease or agreement, parole 
or written; which said forfeiture shall be ascertained by a justice of 
the peace or quorum, with the jurors to be drawn in the same manner 
as is prescribed by this Act, and with like powers where the landlord 
is to be placed in possession. 6th S. L.,68, sec. 8. 

For non-payment of rent, ^c. — Where a lease contained two clau- 
ses for re-entry; the one, in case the yearly rent of £300 was in 
arrear thirty days after it become payable, and the other, in case the 
yearly rent were in ai*cea^ whi^h was stated to be payable half yearly 
at Lady-day and Michaejrftas: held, that the landlord had a right to 
re-enter on non-payment of each half year's rent; as the former 
clause contaJned the description of the amount to be annually paid^ 
and the latter the times for payment. 2d Harrison, 1401. 

To support an ejectment on a forfeiture of a lease, by non-perform- 
ance of a covenant, if the covenant be to do an act, the lessor of the 



348 LAW OF MAGISTRATES. 

plaintiff must give some evidence of the omission of the act; and, if 
the covenant be for payment of rent, the lessor of the plaintiff must 
prove a demand of sweh rent. Ibid, 1402. 

A lease contained a clause of re-entry in case the term of years 
thereby ^ranted should be extended or taken in execution; and before 
the end of the term the sheriff entered the premises under a writ of 
extent against the lessee at the suit of the crown, held an inquisition, 
and seized the lessee's interest into the king's hands:^ held, that this 
proceeding was a taking in execution within the latter clause of the 
condition, and that the term was determined and forfeited to the 
lessor. — lb. 

Where in a lease, a power of re-entry for a breach of covenant is 
reserved to the lessor, a forfeiture may be waived, as the lease is 
thereby rendered voidable only. Ibid, 1403. 

Acceptance of rent after a forfeiture is a waiver of the forfeiture, 
if the fact of forfeiture was known to the lessor at the time. — lb. 

If ejectment is brought on a forfeiture of a lease, and after the 
bringing of such ejectment the landlord accept rent, it is no waiver 
of the forfeiture. — lb. 

A distress and continuance in possession might be a waiver of an 
existing forfeiture, but not so as to any right which accrued subse- 
quently. — lb. 

Taking an insufficient distress after the forfeiture, for rent accruing 
before, is not a waiver of the right to re-enter. — lb. 

6th. Right of Tenant to remove Fixtures. 

With regard to a tenant for years, it is fully established he may take 
down useful and necessary erections for the benefit of his trade or 
manufacture, and which enable him to carry it on with more advan- 
tage. It has been so held in the case of cider mills. A tenant for 
years may also carry away ornamental marble chimney-pieces, 
wainscot fixed only by screws, and such like. But erections for the 
purposes of farming and agriculture do not come under the exception 
with respect to trade, and cannot be taken down again. And where 
the tenant has covenanted to leave all buildings, &;c., he cannot 
remove even erections for trade. Where a tenant for years has a 
right to remove erections and fixtures during his lease, and omits 
doing it, he is a trespasser afterwards for going upon the land, but 
not a trespasser de bonis asportatis. A farmer who raises young fruit 
trees on the demised land for filling up his lessor's orchards, is not 



LAW OF MAGISTRATES. 349 

entitled to sell them, unless he is a nurseryman by trade. 2 Black-' 
stone, 282. (Note.) 

Though a building may be raised on a brick foundation, and have a 
brick chimney, if the erection of such foundation is of wood, and the 
building be used tZv the purpose of trade or manufacture, the tenan^ 
may remove it at the end of his term. 2d Harrison, 1179. 

The machinery of a mill is part of the freehold, and cannot be 
legally removed by the tenant. — Ibid. 

Window sashes, which are neither hung nor beaded into the frames, 
but merely fastened by laths, nailed across the frames to prevent their 
falling out, are not fixed to the freehold. — Ibid, 1180. 

A pump, erected by a tenant, and so fixed as to be removable 
without injury, to the freehold, may be taken away by him at the 
expiration of his term, as being an article of domestic use 'or conve- 
nience. — Ibid. .. • 

A tenant (not a gardener by trade,) cannot remove a border of box, 
planted by himself on the premises demised, unless by special agree- 
ment with the landlord. — Ibid. 

7th. Precedents. 

Lease. 
State op South-Caroliiva. 

This indenture, made the day of , Anno Domini, one thou- 
sand eight hundred and , between of the first part, and 
the lessee of the second part, witnesseth, that the 
said hath granted, bargained and leased, and by these presents, 
doth grant, bargain and lease, unto the said To have and to 
hold the said with the appurtenances, unto the said 
executors, administrators and assigns, for the term of from the 
date hereof, jielding and paying therefor the sum of the 
ending on the day of . And the said execu- 
tors and administrators, doth hereby covenant and agree, to and with 
the said , well and truly to pay the above reserved and stipulated 
rent, at the time above limited; and also, the same sum or rent on the 
day next after the day on which every oubsequent shall end; 
and it is further stipulated, that before the expiration of the term for 
which the said premises are leased, the said tenant shall give 
notice of intention to vacate the aforesaid premises. And it is 
further stipulated and understood, by and between all the parties to 
these presents, that if it should so happen, that rent shall at any 
time be in arrear and unpaid, then the above mentioned term shall 



350 LAW OF MAGISTRATES. 

* immediately cease and determine; and it shall be lawful for the party 
of the first part, to re-enter into and forthwith re-possess all and 
singular the above granted and leased premises. And it is lastly 
stipulated, that the said shall not, without the consent of the 

lessor, conveyjhis lease, or let the said premises to any other person; 
and shall leave the same in like good order, unavoidable accidents, 
and ordinary wear and tear, excepted. 

-^ , . [L. S.] 

Signed, sealed, and delivered, > 

in presence of ^ [l. s.] 

Warrant for Freeholders. 

State of South-Carolina, > 
District of ^ 

To a'*iy lawful Constable, or to the Sheriff of said District. 
You are hereby conKnaoded to summon the freeholders, whose 
names are in the pannel hereto annexed, to be and appear at 
in the and district aforesaid, on next, the day of 

at o'clock, to inquire upon their oaths, of and concerning a certain 
unlawful holding of all the , situated and lying , in the 

State and district aforesaid, by one tenant, over and against 

landlord, against the form of the statute, &.c. And you are 
further commanded to summon the said , or any other person 

claiming or coming into possession under him, at the same time and 
in the same way, to appear at the same time and place, to shew 
cause, if any such lessee or other person may have, why possession of 
the premises aforesaid, shall not be forthwith restored to the said 
, his heirs or assigns. 
Given under our hands and seals, at this day of A. D. 

one thousand eight hundred and 

A. B. [l. s.] 

Magistrate. 
C. D. [l. s,] 

Magistrate. 
[Here annex the pannel of freeholders.'] 

Summons to Defendant. 

State of South-Carolina, > 
District of \ 

The State, ex. rel < j^ Magistrates Court. 

I Tenant holding over Landlord. 



LAW OF MAGISTRATES. 351 

To 

You are hereby summoned to appear, before a Court ofMagistrates 
. and Freeholders, to be holden at , on next, the day 

of , at o'clock, to shew cause, if any you have, why posses- 

sion of the premises, at , in the district and State aforesaid, now 

unlawfully held by you, over and against , your landlord, (as it 

is said) should not be forthwith restored to the said lessor, his heirs or 
assigns. 
Herein fail not. 

Given under my hand and seal at , this day of , 

A. D., one thousand eight hundred and , and in the year of 

American Independence. 

A. B. 
Magistrate. [l. s.] 

Inquisition. 

State of South-Carolina, > 
District of ^ 

The State, ex. rel. , ^ 

vs. > Tenant holding over Landlord. 



An inquisition, taken for and in behalf of , at , in the 

State aforesaid, on the day of , in the year of our Lord, 

one thousand eight hundred and , on the oaths of , 

good and lawful men of the district and state aforesaid, and , 

magistrates for the of , in the district and State aforesaid. 

We find that the lease from to has expired, and that 

is entitled to the immediate possession of the premises, now in the 
occupation of the said , that is to say. \^Here describe the pre- 

mises.'\ The same as the said now occupies, which said 

premises, the said tenant, doth unlawfully hold over against the 

said landlo?"^, against the form of the statute, in such cases 

made and provided, and against the peace and dignity of the said 
State. 

Given under our hands and seals, at , this day of , 

in the year of our Lord one thousand eight hundred and , and 

in the year of the independence of the United States of America. 

[Then follow signatures of freeholders and seals.'\ 

Warrant of Restitution. 
State of South-Carolina, > 
District of ^ 

To , Sheriff of the said District. 



352 



LAW OF MAGISTRATES. 



Whereas, by an inquisition held before us at , in the district 

and State aforesaid, on the day of , by the oaths of , 

twelve good and lawful men of the said district and State, it was found 
by the said freeholders, that was entitled to the possession of 

the premises, situate [Acre describe the premiseSfl and now in the 
possession of . These are, therefore to authorize and require 

you forthwith to eject the said , and all and every other person 

whatsoever, in possession of the said premises, by or through the said 
, and to deliver to the said , his heirs and assigns, full 

possession of the same. You are also required, to levy of the goods 
and chattels of the said , the sum of dollars, for the costs 

and charges, incurred in the said proceeding; and herein fail not, 
under the penalties that will fall thereon. 

Given under our hands and seals, this day of , A. D., 18 
A. B. [l. s.] 

Magistrate. 
C. D. - [l. s.] 

Magistrate. 

The Freeholders Oaths. 

You shall true inquiry and presentment make, of all such things as 
shall come before you, concerning a certain holding over, said to have 
been lately made in the dwelling house of , at , in this 

district: you shall spare no one for favor or affection, nor grieve any 
one for hatred or ill will; but pr oceed herein according to the best of 
your knowledge, and according to the evidence that shall be given 
you. So help you God. 

The oath that , your forem an hath taken on his part, you and 

every of you shall truly observe and keep on your parts. So help you 
God. 



LARCENY 



Simple or 
Compound. 



Larceny or theft is distinguished by the law into two sorts. 1st. 
Simple larceny or theft, unaccompanied by any other atrocious cir- 
cumstances; and 2d. Mixed or compound 'arceny, in which there is 
the additibnal aggravation of taking from the house or person. 

Ist. Of Simple Larceny. 
Simple larceny may be either grand or petit larceny; formerly it 
either grand was grand larceny, when the value of the goods stolen exceeded the 

or petit. ° 



Simple 
larceny 



LAW OF MAGISTRATES. 353 

van le of twelve pence, and petit larceny, when under that amount, but 
now, the amount in value of the goods stolen, which make a larceny 
either grand or petit, is usually fixed by the discretion of the jury. 

These offences formerly were considerably distinguished in their Puniihmeut 
punishment, but since the Acts of 1833 and 1834, abolishing branding 
and substituting whipping and imprisonment in cases of grand larceny, 
the punishment of that offence , is the same as in pet t larceny, except 
that in the former, for the second ofl^ence, the punishment is deaths 
without clergy. 

Simple larceny is the felonious taking and conveying away, theoefiniuoa. 
personal goods of another. 

1st. Of the Taking. 

2d. Of the Carrying Away. 

3d. Of the Intent. 

4th. As TO the Goods of which Larceny may be Committed. 

5th. As TO THE Ownership. 

1st. Of the Taking, 
It must be a taking. This implies the consent of the owner to be 
wanting. Therefore, no delivery of the goods from the owner to the 
offender, upon trust, can ground a larceny. As if .\. lends B. a horse, 
and he rides away with him; or, if I send goods by a carrier, and 
he carries them away ; these are no larcenies. But if the carrier 
opens a bale or pack of goods, or pierces a vessel of wine, and takes 
away part thereof, or if he carries it to the place appointed, and after- 
wards takes away the whole, these are larcenies; for here, the intent 
to steal is manifest; since, in the first case, he had otherwise no 
inducement to open the goods; and, in the second, the trust was deter- 
mined, the delivery having taken its eff^ect. But, bare non-delivery 
shall not of course be intended to arise from a felonious design; since 
that may happen from a variety of other incidents. Neither by the 
common law was it larceny in any servant to run away with the goods 
committed to him to keep, but only a breach of civil trust. But if he 
had not the possession, but only the care and oversight ofthe goods, as 
the butler oflhe plate, the shepherd of sheep, and ihiOike, the embezz- 
ling of them is felony at common law. So, if a guest robs his inn, 
or tavern, of a piece of plate, it is larceny: for he hath not the posses- 
sion delivered to hiin, but merely the use, and so it is declared to bo 
by statute 3 and 4 W. and M., c. 9, if a lodger runs away with the 
goods from his ready furnished lodgings. 4th B. C, 230. 
45 



354 LAW OF MAGISTRATES. 

Where the There is one case in which it has been holden, that the taking will 
finding, u not amount to a larceny, though it be accompanied with the intent to 
amount to Steal; namely, where the taking is by a finding of the property. 'I hus, 
ev^eh'though it 's laid down in the books, that if one lose his goods and another 
intuit w ' fitid them, though he convert them, with an intent to steal, to his own 
this'doar'iDe use,>yet it is no larceny, for the first taking was lawful. And again; 
understOTd if A. find the purse of B. in the highway, and take it and carry it 
UmUation! ^way, with all the circumstances that usually prove the intent to steal, 
as denying it, or secreting it, yet it is not felony. But thotigh, where 
the particular circumstances of any case furnish a presumption of an 
intended dereliction of t.*easure trove, or waif, or stray on the part of the 
owner, no larceny can be committed by taking them before seizure by 
the lord: yet, in other cases, the doctrine of a taking, by finding, must 
be admitted with great limitation, and must be understood to apply 
only where the finder really believes the goods to have been lost by 
the owners, and does not color a felonious taking under such a pre- 
tence. 2 Russell, 101. 

Thus, where the prisoner found a sum of money on the highway, 
which he soon after converted to his own use, with various circum- 
stances of fraud and concealment, — it was held, "that if the prisoner, 
at the time of finding ihe pocket-book, and before he removed the 
money, knew it to be the property of the prosecutor," the conversion, 
under these circumstances, would be larceny. State vs. Ferguson, 
2d M'Mullan, 502. 
Cases of The following cases also further show that the taking animo furandi 

coachmen of goods which have been found by the party, may amount to larceny, 
articles left A gentleman left a trunk in a hackney coach, and the coachman took 
coaches. and Converted it to his own use. This was holden to be felony, on 
the ground that the coachman must have I;nown where he took up the 
gentleman and his trunk, and where he set him down; and that he 
ought, therefore, to have restored it to him. In a late case, where 
the prisoner was indicted for stealing a box, containing a quantity of 
wearing apparel, and two bonds, it appeared that he was a hackney 
coachman, and that he took up the prosecutor with several trunks and 
packages, amongst which was the box in question, at an hotel in the 
Adelphi, and set him down in Orchard-street, Portman Square, where 
all the articles were taken out of the coach by the prisoner and the 
, prosecutor's servant, except this box, which was corded, and had been 
deposited under the seat of the coach. The prisoner received his 
fare and drove away, after which, in a few minutes, the box was 
missed; but the prisoner and the coach were quite gone; and it was 



LAW OF MAGISTRATES. 355 

not till several days had elapsed, and after handbills had been dis- 
persed and advertisements inserted in the public prints, offering a 
reward to any person who should bring home the box, that the prisoner 
was apprehended. The box was then found at the house of a Jew, 
to which the prisoner said he had taken it: but it was uncorded, the 
hasps of it were forced off, and it contained only a part of the property 
which was in it when it was lost, the two bonus and several of the 
articles mentioned in the inrlictment having been taken away. The 
case was left to the jury, to consider whether they were satisfied that 
the prisoner had uncorded the box, not merely from a natural, though 
idle curiosity, but with an intention to embezzle same part of its con. 
tents; and they were of opinion, that he uncorded the box and destroyed 
the papers with an intent to embezzle the goods found in the box. 
They accordingly found him guilty; and the case being reserved for 
the consideration of the twelve judges, a majority of them w6re of 
opinion that the conviction was proper. 2d Russell, 101. 

The doctrine as to a felonious taking of goods, which have been ^-.^ggg ^^j. 
found by the party, was ^urther confirmed in two more recent cases, ^''"'^^u*^^' 
In the first of these cases, it appeared that a pocket-book containing pfjs|,'|fers 
bank notes had been found by the prisoner in th^^ highway, and after- ^"^jjjj'j'o 
wards converted by him to his own usc. Upon which, Lawrence, J. their own 
observed, that if th^ party finding property in such manner knows the 
owner of it, or if there be any mark upon it by which the owner can 
be ascertained, and the party, instead of restoring the property, con- 
verts it to his own use, such conversion will constitute a felonious 
taking. And in the subsequent case, the two prisoners (father and 
son) were convicted of stealing a bill of exchange, upon evidence of 
their having found and converted it to their own use, by endeavoring 
to negotiate it. Gibbs, J., stated to the jury, that it was the duty of 
every man who found the property of another, to use all diligence to 
find the owner, and not to conceal the property (which was actually 
stealing it,) and appropriate it to his own use. 2d Russell, 102. 

A singular case occurred at no very distant period, of a conversion 
with a felonious intent, of a large sum of money found in a bureau, 
which had been delivered to a carpenter, for the purpose of being 
repaired. The point arose in the Court of Chancery upon the follow- 
ing facts. Ann Car^wright died possessed of a bureau, in a secret 
part of which she had concealed nine hundred guineas in specie. 
After her death, Richard Cartwright, her personal representative, 
lent the bureau to his brother Henry, who took it to the East Indies, 
and brought it back, without the contents of it being discovered. It 



856 LAW OF MAGISTRATES. 

was then sold to a person named Dick, for three guineas, who deli» 
vered it to one Green, a carpenter, for the purpose of repairing it. 
Green employed a person named Hillingworth, who found out the 
money. Hillingworth received only a guinea for his trouble; but in 
consequence of his discovery, the whole sum of nine hundred guineas 
was secreted by Green, by Green's wife, and by one Elizabeth Sbarpe, 
and converted to their own use. On these suggestions, Cartwright, the 
personal representative of the original owner of the bureau, filed a 
bill of discovery against Green and his wife, and Mrs. Sharpe, in 
which bill, Dick joined, but did not claim any of ihe money on his 
own account; and the defendants demurred to the bill, on the ground 
that an answer to the discovery sought might subject them to criminal 
punishment. After the argument upon this demurrer, the Lord 
Chancellor said, that the real question was, whether the bill charged 
a felony, and that the distinctions upon that point were so extremely 
nice, that he should not trust himself to say any thing upon them until 
he had seen all the cases, and consulted some of the judges. Some 
time afterwards his Lordship deliveied his opinion and said — "I have 
looked into the books, and have talked with some of ih^ judges, and 
others; and I have not found in any one person a doubt that tliis is a 
felony. To constitute felony, there must, of necessity, be, a felonious 
taking. Breach of trust will not do. But from all the cases la 
Hawkins, there is no doubt that this bureau being delivered to Green, 
for no other purpose than to repair, if he broke open any part which 
it was not necessary to touch for the purpose of repair, with an inten. 
lion to take and appropriate to his own use what he should find, that 
is a felonious taking, within the principle of all the modern cases; as 
not being warranted by the purpose for which it was delivered. If a 
pocket-book, containing bank notes, were left in the pocket of a coat 
sent to be mended, and the tailor took the pocket-book out of the 
pocket, and the notes out of the pocket-book, there is not the least 
doubt that it is a felony. So, if the pocket-book was left in a hackney 
coach, if ten people were in ihe coach in the course of the day, and 
the coachman did not know to which of them it belonged, he acquires 
it by finding it certainly; and not being intrusted with it for the pur- 
pose of opening it, that is felony, according to the modern cases. 
Those with whom I have conversed upon this point, who are of very 
high authority, have no doubt upon it." — Ibid. 

In cases of this nature, where the taking was by finding, some of 
the strongest circumstances to rebut the implication that such taking 
was felonious, will be those which show that the party made it known 



LAW OF MAGISTRATES. 357 

that he had found the property, so as to make himself responsible for 
the vaUie, in case he should be called upon by the owner; or those 
which show that he endeavoured lO discover the true owner, and kept 
the goods till it might reasonably be supposed that the true owner 
could not be found. — lb. 

Upon some of the doctrines relating to the felonious taking, &c., ca?es whpre 
vhich have been already mentioned, points of considerable difficulty by*^ the ("eiiV- 
wili sometimes occur; but by far the most nice and intricate questions gem or the 
arise upon the class of cases which are now to be considered, namely, ' 
those in which it appears that the goods were taken by the delivery 
or consent of the owner, or of some one having author! (y to deliver 
them. The material ingredients in the definition of larceny, already 
spoken of, must still be kept in mind; particularly that of the animus 
furandi, and the doctrine that the goods- must be taken ^'■iavito domino.^* 
2 Russ., 106. 

It may, in the first place, be observed, with respect to these cases p^nvery, 
where the goods are obtained by delivery, that if it appear that, ,^ [^.^''ctiai'g, 
although there is a delivery by ihe owner in fact, yet there is clearly JJ[onea!i7 
no change of property nor of legal possession, but the legal possession P"^"*^*^'""' 
still remains exclusively in the owner, larceny may be committed 
exactly as if no such delivery had been made. — lb. 

Thus, if a person, to whom goods are delivered, has only the bare p^^^p^ ^i^^^.^ 
charge or custody of them, and the legal possession remains in the '''^^^ 'j^.^'J 
owner, such person may commit larceny, by a f audulent conversion '^||.^"**'^'^y' 
of the goods to his own use, a ('octrine which directly applies to the ''*'" "y "*" 
case of servants entrusted with the care of goods in the possession of 
their masters. And larceny may be committed also in a like manner 
by a person who has a bare special use of goods. Thus, a man may 
be guilty of larceny in taking a piece of plate, set before him to drink 
in a tavern; for he has only a liberty to use, not a possession by deliv. 
ery. So if a weaver, or silk-thrower, deliver yarn, or silk, to be 
wrought by journeymen, in his house, and they carry it away with 
intent to steal it, this is felony; the entire property remaining there 
in the owner, and the possession of the wcjkmen, being the possession 
of the owner. But it would not be felony if the yarn had been deliv- 
ered to a weaver out of the house, who, having thus the lawful pos- 
session of it, had afterwards embezzled it; because, by the delivery, 
he had a special property, and not a bare charge; in the same manner 
as one who is entrusted with the care of a thing for another to keep 
for his use. 2d Russ., 107. 

In a case where the prisoner was a lodger, and his land-lady want- 



358 



LAW OF MAGISTRATES. 



Delivery, 
where the 
owner re- 
mains pre- 
sent. 



Campbell's ing change for a bank note, sent it by her servant, to the prisoner up 
landlady staifs, begging that he would give her change for it; when the pris- 
servanitoa oner, after examining his purse, said that he had not. gold enough 
banknote, about him for the purpose, but that he would go immediately to his 
him to " bankers and get the note changed; upon which he left the house, 
and "he goes with the bank note in his hand, and never returned; the prisoner 
u^heiTwbe ^ppsars to have been convicted without any question having been 
larceny. made as to the offence amounting to larceny. But, in this case, it 
probably might have been considered that the land-lady did not intend 
to part with the note without first receiving the change; and if so, 
that the servant delivered the note to the prisoner without the author- 
ity of her mistress, and therefore, that no legal possession of it ever 
passed to the prisoner; and that in taking it, he was guilty of a tres- 
pass. 2 Russ., 105. 

It has been suggested as worthy of consideration, whether the 
distinction concerning the legal possession remaining in the owner, 
after a delivery in fact to another, do not extend to all cases where 
the thing so delivered for a special purpose, is intended to remain in 
the presence of the owner. And it is well advanced, in support of the 
observation, that in casps of this kind, the owner cannot be said to 
give any credit to, or repose confidence in, the party in whose hands 
it is so, in fact, placed; and that, the thing being intended to be 
returned to the owner again, and resumable by him every moment, 
his dominion over it is as perfect as before; and the person to whom 
it is so delivered, has, at most, no more than a bare limited use, or 
charge, and not the legal possession of it. And though the case of a 
person going into a shop, under pretence of buying goods, and, upon 
their being delivered to him to look at, running away with them; and 
also that of a person going into a market, and obtaining a horse, for 
the purpose of trying its paces, and then riding away with it, have 
been considered as felonious, on the ground of a preconcerted design 
to steal the chattels; yet they appear also to be sustainable on the 
ground that the legal possession of such chattels still remained in the 
owner of the goods, notwithstanding the delivery, he continuing pre- 
sent. — lb. 

It may be further observed, as clearing the ground of inquiry, 
concerning these cases of a delivery of the goods by the owner, that 
it is a settled and well established principle, that if the owner part 
with the property in the goods taken, there can be no felony in- the 
taking, however fraudulent the means by which such delivery was 
procured. The following are some of the cases in which it has been 



Delivery, 
where the 
ownei parts 
with the 
property in 
the goods 
taken. 



LAW OF MAGISTRATES. 359 

holden that the owner had parted with the property in the goods, by 

his delivery of them to the prisoner. Upon an indictment for horse Harvey's 

stealing, it appeared that the prosecutor was at a fair, having a horse piisnnermde 

. 1 1 11 I 1 aivay witli a 

there, in the care of a servant, which he intended to sell, when he in-rse from a 

11. II II I 11 fair, after it 

was met by the nrisoner, to whom he was personally known, and who wnssiid to 

• 1 1 •" T i' 1 1 11 T 1 • 1 1 -11 • liiin, without 

said to him, "1 hear you have a horse to sell; 1 think he will suit my paving the 
purpose; and if you will let me have him a bargain, I will buy him." money. 
The prisoner and the prosecutor then walked together into the fair, 
towards the horse, and, upon a view of him, the prosecutor said to the 
prisoner, "you shall have the horse for eight pounds;" and calli<rg to 
his servant, he ordered him to deliver the horse to the prisoner. The 
prisoner immediately mounted the horse, saying to the prosecutor that 
he would return immediately, and pay him. The prosecutor replied, 
"very well." The prisoner rode away with the horse, and never 
returned. Upon these facts, the learned judge, by whom the prisoner 
was tried, directed an acquittal, on the ground that there was a com- 
plete contract of sale and delivery, and that the property, as well as 
the possession, was entirely parted vjith. 2 Russ., 109. 

Parke's case. The prisoner, with a fraudulent intent to obtain Obtaining 

,,. • I r !!• possession by 

goods, ordered a tradesman to send him some, to be paid for on dehv- false bills. 
ery; and, upon the goods being sent accordingly, gave the servant 
who brought them, bills which were mere fabrications, and of no 
value; and it was holden not to be larceny, on the ground that the 
servant parted with the property by accepting such payment as was 
offered, though his master did not intend to give the prisoner credit. 
2 Russ., 110. 

Nicholson's case. The prosecutor having been inveigled by shar- 
pers to bet with them, and suffered by them to win in the first instance, to bet.*^ ^ 
was afterwards stripped of a large sum, by losing a bet; and the whole 
transaction was found by the jury to have been a preconcerted 
scheme to get the prosecutor's money; but it was holden not to be a 
felonious taking, as the prosecutor parted with the property in his 
money, under an idea that it had been won fairly. — Ibid, 111. 

Coleman's case. The same rule will prevail, though the name Using the 
of another person be used to procure a delivery by the owner. So another. 
that where silver was so obtained, it was holden not to be felony. — 
Ibid, 113. 

Walsh's case. Held under the particular circumstances, that as 
there was no fraud used to induce the prosecutor to deliver a check, cii(!ck"wuh- 
there was no larceny of the check, although the prisoner intended to °"' ^'■2"'^* 
misapply the proceeds before he received the check, and did mis- 



300 LAW OF MAGISTRATES. 

apply them accordingly. And as to a charge of stealing the notes, 
which were the proceeds of the check, held under the particular 
circumstances, that the property in the notes never was vested in 
the prosecutor — Ibid, 114. 
Delivery, But if the owner has not parted with the property in the goods, but 

owiVen'iots only with the possession of them, the question of larceny still remains 
with'the open, and will depend upon the fact, whether, at the lime of the 
b'ut'oiiiy' alleged felonious taking, the owner had parted with the possession of 
p^i'cIlJs'Jon of ^'^'^ goods in such a manner, and to such an extent, as to exclu'le the 
Uiegoods. jjgg^ ^f trespass. For if the owner of the goods parted with the pos- 
session of them without fraud practised by the taker, and if, after the 
owner had so parted with the possession of them, nothing was done 
to determine the privity of contract under which the taker had the 
possession of them delivered to him, no trespass, and therefore no 
larceny, can be committed by their conversion. Upon the subject, 
therefore, of larceny, where the owner or person authorized to dispose 
of the goods has parted with the possession of them by delivery to the 
party accused, the inquiry seems to resolve itself into two heads; 
first, whether the delivery was obtained fraudulently, with intent to 
steal the goods; and if the delivery were not so obtained, then, 
secondly, whether the lawful possession has been determined, and 
whether there has been any new and felonious taking. 2d Russell, 
118. 

The cases in which it has appeared that the delivery of the goods 

Delivery, , . i c i i i 

where it has was obtained fraudulently, and with intent to steal them, consists 

been obtain- . . ,, « . n i -i i i i • n- 

edt.iiudu- principally of transactions usually described by the term swindling, 

leiitly, with i i • . i i . . • . , i 

intent lo steal and which have been in most instances carried on by the common 

tbe goods. , , , . T ^ I 1 

arts adopted on such occasions. In a tew, however, the more aggra- 
vated proceeding has been adopted, of getting fraudulent possession 
of the goods by act of law. — lb. 

Sharpless & Geatbix's case. A hosier, by the desire of the pris- 
oner, took a variety of silk stockings to his lodgings, where the 
prisoner pretended to purchase some of them, and set them apart 
from the rest, and then, having sent the hosier to fetch some more 
articles, decamped with the stockings; this was holden to be larceny. 
2dRuss., 118. 
By pretend- Wilkin's case. Where the owner of goods sent them by his ser- 
another! ^^.nt to be delivered to A, and the prisoner fraudulently procured the 
delivery of them to himself, by pretending to be A, it was holden to 
be larceny. — Ibid, 119. 

AicKLEs' case. The prisoner agreed with the prosecutor to dis- 



LAW OF MAGISTRATES. 361 

count a bill of exchange for him, and the bill was delivered into the obtaimnsa 
, , , TT-i • 1 .1 1 .^ 1 bill by Offer- 

prisoner s hands. Ihe prisoner then said, that it the prosecutor in^ lo 

would come to his lodgings, he would give him the cash. The pros. 

ecutor did not go himself, but sent his clerk, whom he desired not to 

lose sight of the prisoner till he bad got the money. The prisoner - 

contrived tor get away from the clerk with the bill, and without paying 

the money; and this was holden to be larceny, the jury finding a 

preconcerted design by the prisoner to get the bill into his possession 

with intent to steal it. 2 Russ., 121. 

Oliver's case. The prisoner offered to accommodate the prosecu- By proposing 
tor by giving him gold for bank notes, upon which the prosecutor put n'otps for^ 
down a number of bank notes for the purpose of their being so^ 
exchanged. The prisoner took up the notes and made away with 
Ihem. And this was holden to be larceny, if tiie jury believed that 
the prisoner intended to run away with the notes, and not to return 
with the gold. 2 Russ., 122. 

So where it appeared that the prisoners decoyed the prosejcutor property 
into a public house, and there introduced the play of outting cards, "^^'^^1'^"*^^.''^ 
and that one of them prevailed upon the prosecutor, (who did not g^^''^' ''^*^' 
play on his own account) to cut the cards for him, and then under 
pretence that the prosecutor had cut the cards for himself, and had 
lost, another of them swept his money off the table and went away 
with it; it was considered to be one of those cases which should be 
lett to the jury to determine quo animo the money was obtained, and 
which would be felony, in case they should find that the money was 
obtained under a preconcerted plan to steal it. So if there is a plan 
to cheat a man of his property under color of a bet, and he parts with . , 
the possession, only to deposit as a stake to one of the confederates, 
the_ taking by such confederate is felonious. The prosecutor was 
drawn in to deposit twenty guinea notes on a bet, that one of the 
prisoners could not guess right three times successively on the hiding 
of a halfpenny by another of the prisoners under a pot ; he put the 
notes in the hands of one of the prisoners, and then the other guessing 
right, the notes were handed over. The question was left to the 
jury, whether, at the time the notes were taken, there was not a plan 
between the prisoners that they should be kept under the false color 
of winning a bet; and the jury so found. Upon a case reserved, the 
judges, (ten of them being present,) held, that the conviction was 
right, because at the time of the taking, the prosecutor parted with 
the possession only. 2 Russ., 123. 

Patch's case. The prisoner, with some accomplices, being in 
46 



862 



LAW OF MAGISTRATES. 



Persons 
acting in 
concert. 



Delivery of 
goods 

obtained by 
the fraudu- 
lent abuse 
of legal 
process. 



Delivery of 
the goods 
obtained 
without 
fraud, and 
question 



company with the prosecutor, pretended to find a valuable ring. The 
prosecutor was to have a share of the pretended value of it, and was 
prevailed upon to deposit his watch, &c., and to take the ring until 
his share of the value should be paid. The accomplices of the prisoner 
made off with the watch, «fec., and the ring proved to be of the value 
only of ten shillings. It was left to the jury to say whether this was 
done with a preconcerted plan to obtain the watch, &c., and the 
prisoner was found guilty. 2 Russ., 124. 

Moore's case. Where the prisoner induced the prosecutor to 
deliver twenty guineas and four doubloons, by way of pledge for a 
counterfeit jewel, pretended to be found, with intent to steal the 
money, it was bolden to be larceny. — lb., 125. 

If several act in concert to steal a man's goods, and he is induced 
by fraud to trust one of them in the presence of the others, with the 
possession of the goods, and then another of the party enticed the 
owner away, in order that the party who has obtained such possession 
may garry the goods away, all will be guilty of felony, the receipt by 
one under suuh circumstances being a felonious taking by all. — Ibid, 
27. 

A delivery of goods obtained by a fraudulent abuse of legal process, 
has been already mentioned as amongst the most aggravated of these 
cases of larceny, where the taking is effected by procuring a delivery 
of the goods from the owner, or other person authorized to dispose of 
them. It will generally be a matter of some difficulty to give satis- 
factory proof of a felonious intent in such a transaction ; but if the 
offence be proved, the severest punishment which it can receive may 
\vell be inflicted; for it has been justly observed, that such an offence 
converts the process of the law, which is the best security for property, 
into an instrument of rapine and plunder. The books do not furnish 
many instances of larcenies of this description. But it is laid down, 
that if a person, intending to steal a horse, take out a replevin, and 
having thereby procured the horse to be delivered to him by the 
sheriff, ride him away; or if a man, intending to steal the goods of 
another, fraudulently deliver an ejectment, and by obtaining judge- 
ment against the casual ejector, get possession of his house, and take 
his goods; in both these cases, the taking will amount to larceny. — 
Ibid, 130. 

Where it appears that the delivery of the goods by the owner, or 
person authorized to dispose of them, was not obtained fraudulently, 
and with intent to steal, a remaining inquiry may be: whether such 
lawful possession has been determined, and whether there has been 



LAW OF MAGISTRATES. 363 

any new and felonious taking. Thus it has been held, that if a car- whether 

1 1 i' I 11 ■ 1 1 1 1 • 1 there has 

rier take a pack or goods to the place appointed, and deliver or lay been a new 

, ,. .., ., i./i r 1 . and felonious 

It down, his possession is determined; and it he atterwards carry it taking, 
away with intent to steal it, this will be a new taking, and felonious. 
If the lawful possession has not been determined, the goods will con- 
tinue in the pussession of the party to whom ^\ey were delivered by 
bailment; and the general principle of law will prevail, "that if a 
person obtain the goods of another without fraud, although he have 
the animus fur andi afterwards, and convert them to his own use, he 
cannot be guilty of felony." A principle, which has been holden to 
extend to the cases of a tailor, who has cloth delivered to him to make 
clothes with; a carrier who receives goods to carry to a certain 
place; and a friend who is entrusted with goods to keep for the usq 
of the owner; which they afterwards severally embezzle. And so, 
also, if plate be delivered to a gold-smith to work or to weigh, or as 
a deposit, it h?.s been said that his conversion of it will not be a 
felony. It has, however, been already noticed, that some of the 
cases of this nature seem to make a near approach to those where a 
bare charge, or mere special use of the goods, is transferred by the 
delivery, and where, consequently, the legal possession of them 
remaining exclusively in the owner, larceny may be committed in 
respect of them, exactly as if no delivery at all had been made. 2 
Russ., 131. 

It appears always to have been considered, that where a horse was Delivery of 
delivered upon hire or loan, and such delivery was obtained bona fide, uvonUte., 
no subsequent wrongful conversion pending the contract would/iJe. 
amount to felony; and so of other goods. But it was at one time held, 
that when the purpose of the hiring or loan, for which the delivery 
was made, had ended, felony might be committed by a conversion of 
the goods; and, consequently, that if the hiring of a horse was limited 
to a particular time or place, and after that time had expired, or the 
party had arrived at the proper place for the re-delivery, he rode 
away with the horse, and converted it to his own use, it was larceny. 
But this doctrine was considered, and held to be wrong, in a case of 
recent occurrence. The prisoner had borrowed a horse, to take a 
child to a neighboring surgeon, and after he had done so, and returned, 
he took the horse in a different direction and sold it. The jury were 
satisfied that he had no felonious intention when he borrowed it ; but 
as the purpose for which he hired it was over before he took the 
horse to the place where he sold it, the jury were directed to convict, 
in order that the point might be considered; and upon the case 



364 LAW OF MAGISTRATES. 

reserved, the judges held, that there was no felonious taking, and 
that the conviction was w^rong. So that it is now settled, that where 
the ovv'ner parts with the. possession ofgoodsfor a special purpose, and 
the bailee, when that purpose is executed, neglects to return, and 
afterwards disposes of them, if such bailee had not a felonious inten- 
tion when he origiuall^^took the goods, &c., subsequent withholding 
and disj)osing of them, will not constitute a new felonious taking, nor 
make him guilty of felony. — lb., 132. 
Privity of The privity of a contract may be determined before its regular 
de"enn'iiied, Completion bv the tortuous acts of the bailee. A. delivers the key of 
fy'^by'thJ''" ^"'^ chamber to B., who unlocks the chamber and takes the goods of 
onii'e'baiiee^ ■'^•' ^^''^ intent to steal them. This has been holden to be felony, for 
the reason that the goods were not delivered to B., but taken by him; 
a judgement which appears to have proceeded upon the ground that, 
by the delivery of the key in this case, it was not in the contemplation 
of the j)arties to make a delivery of the goods cotitained in the room. 
But supposing the key to have been delivered for the purpose of entrus. 
ting the party with the care of the goods, still, according- to a very 
good opinion, the taking of the goods out of the room, with a felonious 
intent, might have been felony; on the ground that, by the act of 
taking the goods with such an intent out of the room in which they 
were intended to remain for safe custody, the privily of the contract 
would have been determined in the same manner as if they had been 
delivered in a box, and taken out of it afterwards. 2d Russ., 132. 
Carrier, Upon the Same principle of a determination of the privity of con- 

WGflVRr GtC 

taking the ' tract, by a tortuous act of the bailee, it has been holden, that if a 
delivered to carrier open a pack and take out part of the goods, or a weaver take 
part of the silk which he has received to work, or a miller take part 
of the corn whii;h has been delivered to him to grind, such takings, if 
with a felonious intent, will be felony. And in a more recent case, it 
was held, that where a warehouse-man took all the wheat out of cer- 
tain bags which had been delivered to him for safe custody, and 
disposed of it, he was guilty of larceny. The prisoner had received 
forty bags of wheat to keep in his warehouse for one Neale; having 
no authority to sell, or to show samples; he emptied eight of the bags, 
and sold the wheat they contained, and afterwards filled the bags with 
inferior wheat; but as it did not appear that he had taken less than the 
whole of any one bag, the point was saved, whether any larceny had 
been committed, and the judges were unanimous that this was a lar- 
ceny, and that taking the whole out 'of any one bag, was not less a 
larceny than taking a part. — Ibid, 134. 



LAW OF MAGISTRATES. . 365 

With respect, however, to a conversion of goods by a carrier, a Distinction 
notable distinction should be observed, namely, that though if a car- cariiei'3 
rier, to whoin a package of goods is delivered, to take to a certain 
place, open the package and take out part of the goods, it will be a 
felonious taking; yet it will be no felony if he take away the whole 
package. The doctrine seems, indeed, to savor a little of contradic- 
tion, and has been considered as standing more upon positive law not 
at this time to be questioned, than sound reasoning. The distinction 
appears to have proceeded upon the ground, that the act of breaking 
the package is an act of trespass in the carrier, by which the privity 
of contract is determined; whereas, if there be no breaking of the 
package, no severance of part of the commodity from the rest by the 
carrier, but the whole of it be parted with by him in the state in which 
it was delivered to his hands, there will be nothing which will amount 
to a trespass while the package remains in his possession. And if this 
be the true principle of the distinction, it does not seem to make any 
difference, where there is such a breaking of the package, whether 
the carrier take the whole or a part only of its contents. — Ibid, 135. 

2d. Of the Carrying Away. 

There must not only be a taking, but a carrying away; cepit fi/ Must be a 
asportavit, was the old law latin. A. bare removal from the place jn"^^"'"'"* 
which he found the goods, though the thief does not quite make off 
with them, is a sufficient asportation or carrying away. As if a man 
be leading another's horse out of a close, and be apprehended in the 
fact; or if a guest, stealing goods out of an inn, has removed them 
from his chamber down stairs; these have Vjeen adjudged sufficient 
carryings away, to constitute a larceny. For, if a thief, intending to 
steal plite, lakes it out of a chest, in which it was, and lays it down 
upon the floor, but is surprised before he can make his escape with 
it; this is larceny. 4th B. C, 231. 

But a very slight asportation will suffice. Thus, to snatch a dia. 
mond from a lady's ear, which is instantly dropped among the curls o^ 
her hair; to remove sheets from a bed, and carry them into an adjoin- 
ing room; to take plate from a trunk, and lay it on the floor, with 
intent to carry it away; and to remove a package from one part of a 
wagon to another, with a view to steal it; have respectively been 
holden to be felonies; and where a prisoner had lifted up a bag from 
the bottom of a boot of a coach, but was detected before he had got it 
out, it did not appear that it was entirely removed from the space it 
at first occupied in the boot, but the raising it from the bottom had 



36G LAW OF MAGISTRATES. 

completely removed each part of it from the space that specific part 
occiipied; this was held a complete asportation. 4th B. C, 232. 
(Note.) 

3d. Of the Intent. 

felonious. ^"® of the most material considerations respecting the taking and 

carrying away of goods necessary to constitute larceny, is, whether 
the fact were done animo furandi — "cum animo dico, quia sineanimo 
furandi non commitiitur.^'' The ordinary discovery of such felonious 
intent is where the party commits the fact clandestinely, or, upon its 
being laid to his charge, deni'^s it; but this is by no means the only 
criterion of criminality; for in cases that may amount to larceny, the 
variety of circumstances is so great, and the complication thereof so 
mingled, that it is impossible to recount all those which may evince a 
felonious intent, or animum furandi. It is useful to refer to those 
points which have already come' under consideration: but new cases 
will continually occur, in which the felonious intent must be left, upon 
the particular circumstances, to the due and attentive consideration of 
the Court and jury, who will not forget the excellent rule, that iu 
doubtful cases it is proper rather to incline to acquittal than conviction. 
2d Russell, 97. 

Cases, where It is clear that the taking, though wronsrful, may only amount to a 

the taking is ^ . &> & B ) J J 

only a trespass. Thus, if a man takes away the goods of another, openly 

before him or other persons, otherwise than by apparent robbery, this 
carries with it an evidence only of a trespass, because done openly in 
the presence of the owner or of other persons who are known to the 
owner. And the evidence of its being only a trespass will be strong, 
where a person, having possessed himself of the goods of another, 
avows the fact before he is questioned. Again, if a man leaves a 
harrow or plough in a field, and another person who has land in the 
same field uses those instruments, and having done with them, either 
returns them to the place where they were, or acquaints the owner 
with his having taken them, this is no felony, but at most, a trespass. 
And the same conclusion must be drawn where a man, having cattle 
upon a common which he cannot readily find, takes his neighbor's 
horse which is depasturing on the common, rides about upon it to find 
his cattle, and, when he has done with it, turns it again upon the com- 
mon. But the case will not be so clear where the property is taken 
without the privity or leave of the owner, and no intention to return 
it is manifested by the party by whom it is taken. — Ibid. 

Phillips & Strong's case. The prisoners took two horses from a 



LAW OF MAGISTKATES. 3G7 

stable, rode them to a place at a considerable distance, and there left 
them, proceeding on their journey on foot; and the jury having found 
that the horses were taken by the prisoners only in order to ride them 
and afterwards leave them, it was holden to be trespass, aid not lar- 
ceny. — Ibid. 

Clandestinely taking away articles in order to induce the owner, a 
girl, to fetch them, and thereby to give the party an opportunity to 
solicit her to commit fornication with him, is )iot a felonious taking. 
The prisoner took from a house, in the night, a young girl's bonnet, 
and some other articles o( her dress, and carried them to a hay-mow, 
whei'e he had twice had connexion with her; and the jury thought 
that he only took them in order that she might again go to the mow, 
and that he might have another opportunity of soliciting her to repeat 
the connexion. Upon a case reserved, the judges thought the taking 
with such an intent was not felonious, and the prisoner was pardoned. 
Ibid, 98. 

A taking of another's properly may also be by mistake, ari'sing ,j,,^g ,^^,.1^ 
from heedlessness or accident, in which the animus fur andi has no^^J^^^j,^^ 
part. Thus, if the sheep of A. stray from his flock to the flock of B.,^;]^^^^'^"^ 
and B. drive them along with his own flock, and, by mistake, without •^"'■'""''• 
knowing or taking heed of the difference, shear them, it is no felony. 
But if B. knew them to be the sheep of another person, and tried to 
conceal that fact; if, for instance, finding another's mark upon them, 
he defaced it, and put his own mark upon them, this would be evidence 
of felony. And a like conclusion may be drawn, where a party, 
having possession of another's property, appears desirous of concealing 
it, or of preventing the inspection of the owner, or of any person who 
may make the discovery; or where, being asked, he denies having the 
property, though it is clear that he knew of its being in his possession. 
On the other hand, a mode of conduct, of a different description, in 
these seveial respects, will be evidence to rebut any felonious intent. 
Ibid. 

The circumstance of the goods being taken on a claim of right, „^ 

° ° o ' The anim-us 

may also negative any animus furandi. In one instance, indeed, a. fttraitdi may 
man may be guilty of felony in taking his own goods; namely, where neg«'.'^ed by 
having bailed them to another person, he afterwards steals them from r'ght. 
such person in order to charge him for them in an action, or robs the 
other person of them in order to charge the hundred. But regularly, 
a man cannot commit felony of goods wherein he has a property. 
Thus, if A. lake away the trees of B., and cut them into boards; or, 
if A. take the cloth of B., and make it, into a doublet, B. may take 



868 LAW OF MAGISTRATES. 

the boards or the cloth, and it will not be felony. So, if A. take the 
hay or corn of B., and mingle it with his own heap or cock, or take 
B's cloth, and embroider it; B. may retake the whole heap of corn or 
cock of hay, (at least so much of them as cannot be easily distinguished 
from his own,) and the garment with the embroidery; and such reta- 
king will be no felony. — Ibid, 99. 

4//i. As to the Goods of which one may com mil Larceny. 

By the ^J ^^^ common law, larceny cannot be committed of things which 

[aw."iarceny *^^'"'' ''f^''^^ realty, and are, at the time they are taken, a part of the 
^^JJ'[°5('g^ of freehold; whether they are of the substance of the land, as lead, or 
are'Tpar't'of ^^^^^ minerals; of the produce of the land, as trees, corn, grass, 
the ircehoid. 3pp]gg^ QP f,(j^pp Ci.yj(j. or things affixed to the land, as buildings, and 
articles, such as lead, &c., annexed to buildings. The severance 
and taking of things of this description is, at common law, only a 
trespass. One reason for which doctrine (though it does not apply to 
the whole of the articles which have been enumerated,) is said to be 
that things which are a part of the freehold, being usually more diffi- 
cult to remove, are less liable to be stolen: possibly also, the doctrine 
may have proceeded upon certain subtleties in the legal notions of our 
ancestors: and it may, perhaps, in some measure, have originated in 
the greater security from private depredations of the things which 
were part of the freehold, than of those which were merely personal, 
in tlie earlier times, when articles of provision and other personal 
chattels, (frequently the most valuable) were carried from place to 
place by the individual tenants, in that attendance in the camp which 
was exacted by their military tenures. 2d Russell, 136. 
But they But things, though they savor of the realty, may become the sub- 

subjects of jects of larceny by being severed from the freehold; thus, if stones 
beiugsevered be dug out of a quarry, wood be cut, fruit be gathered, or grass be 
cut, larceny may be committed of them; and this will be the case, not 
only when they have been severed by the owner, but also by the thief 
himself, if there be an interval between his severing and taking them 
away; so that it cannot be considered as one continued act. If there- 
fore the thief sever them at one time, whereby the trespass is completed, 
and they are converted into personal chattels, in the constructive 
possession of him on whose soil they are left or laid, and come again 
at another time, when they are so turned into personality, and take 
them away, it is larceny. Thus, though "if a thief severs a copper, 
and instantly carries it off^ it is no felony at common law; yet if he 
lets it remain after it is severed, any time, then the removal of it 



LA.W OF MAGISTRATES. 369 

becomes a felony, if he comes back and takes it: and so of a tree 
which has been sometime severed." — lb., 137. 

By Act of 1828, if any person shall take from any field not belong- stealing 
ing to such person, any cotton, corn, rice, or other grain, fraudulently, from the 
with an intent secretly to convert the same to the use of such person 
taking the same, such person so offending shall be guilty of larceny, 
either grand or petit, as the value of the property may be. 6th S. 
L., 284. 

If any person or persons shall steal, or take by robbery, any bond. Bonds, notes, 
warrant, bill or promissory note, for the payment or securing the action! ^ ' 
payment of any money, being the property of any other person or 
persons, or of any corporation, notwithstanding any of the said par- 
ticulars are termed in law a chose in action, it shall be deemed and 
construed to be felony, of the same nature and in the same degree, 
and with or without the benefit of clergy, in the same manner as it 
would have been if the offender had stolen or taken by robbery, any 
other goods of the like value with the money due on such bill, bond, 
warrant or note, or secured thereby, and remaining unsatisfied; and 
such offender shall suffer such punishment as he or she should or 
might have done, if he or she had stolen other goods of the like value 
with the moneys due on such bond, warrant, bill ornote, respectively, 
or secured thereby and remaining unsatisfied ; any law to the 
contrary thereof in any wise used notwithstanditig. ?.d S. L., 470. 

Rank bills are such securities for payment of money, as shall be Banic wiia. 
included under the words "bill or promissory note," of the A. A. 
1736-7; and are subjects of larceny, under the same; and the taking 
need not be by robbery. State vs. Casados, 1st N. & M'C, 91. 

With reijard to domestic animals, such as horses, oxen, sheep, andDo'nes'ic 

f^ ' . animals. 

the like, there is no doubt whatever that they were the subjects of 
larceny at common law. Domestic birds also, as ducks, hens, geese, 
turkeys, peacocks, &;c., are clearly the subjects of lai'ceny. So also 
larceny may be committed of their eggs or young ones. 2d Rus- 
sell, 1.50. 

And as the stealing of such animals is larceny, it is also larceny And tiieir 
to steal the produce of them, though taken from the living animals. 
Upon this ground it was holden by all the judges, on a case reserved 
for their opinion, that milking a cow at pasture, and stealing the 
milk, was larceny. And it has also been holden, that larceny may 
be committed by pulling woo! from the bodies of live sheep and lambs, 
with a felonious intent. — lb. 

Where the animals or other creatures are not domestic, but are 
47 



370 



LAW OF MAGISTRATES. 



Animals, 
etc., ferm 
natur/B , 
reclaimed or 
dead. 



Animals, 
etc., unre- 
claimed' 



Animals of 
a base 
nature. 



fera naUircn, larceny may, notwithstanding, be committed of them, 
if they are fit for the food of man, and dead, reclaimed, and known 
to be so, or confined. Thus, if hares or deer be so enclosed in a 
park, that they may be taken at pleasure; or fish in a trunk or net, 
or as it seems in any other enclosed place which is private property, 
and where they may be taken at any time, at the pleasure of the 
owner; or pheasants and partridges be confined in a mew; or pigeons 
be shut up in a pigeon house; or swans be marked and pinioned, or 
(though unmarked) be kept tame in a mote, pond or private river; 
or ifany of these creatures be dead, and in the possession of any one; 
the taking of them with felonious intent will be larceny. — lb., 1.51. 

But a different doctrine prevails with respect to animals and other 
creatures Jerce naturce, which are unreclaimed: as it is considered 
that no person ha^s a sufficient property in them to support an indict- 
ment for larceny. Thus, larceny cannot be committed of deer, hares, 
or conies, in a forest, chase or warren; of fish in an open river or 
pond; of wild fowls, when at their natural liberty; of old pigeons, 
out of the dove house, or even of swans, though ndarked, if they range 
out of the royalty, because it cannot be known that they belong to any 
person. But larceny may be committed of the flesh or skins of any 
of these or other creatures fit for food, when they are killed; because 
they are then reduced to a state, in which a right of property in 
them may be claimed and exercised. — lb. 

There is yet another kind of animals to be noticed; namely, those 
which, though they n^.ay be reclaimed, are not such of which larceny 
can be committed by reason of the baseness of their nature. Some 
animals, which in this country are now usually tame, come within 
the class in question; as dogs and cats. And others which, though 
wild by nature, are often reclaimed by art and industry, clearly fall 
within the same rule; as bears, foxes, apes, monkies, polecats, ferrets, 
and the like. The reason upon which this doctrine appears originally 
to have proceeded, is, that creatures of this kind, for the most^ part 
wild in their nature, and not serving, when reclaimed, for food, but 
only for pleasure, ought not, however the owner may value them, to 
be so highly regarded by the law, that for their sakes a man should 
die. And the doctrine extends to the whelps, or young of such ani- 
mals; the rule being established, that where no felony can be com- 
mitted of any creatures that are fercB naturcE, though tame or 
reclaimed, it cannot be committed of the young of such creatures in 
the nest, kennel, or den. — lb., 153. 



LAW OF MAGISTRATES. sll 

5t7i. As to the Ownership. 

Joint tenants, or tenants in common, have not an x)wnership, as 
against each other, upon which an indictment for larceny can be 
sustaixied. 2d Russ., 154. 

Nor has a husband such an ownership of his goods as against his Husband and 

wife. 

wife, that she or any one, by her delivery, may commit larceny of 
them. — lb., 155. 

A man may, under particular circumstances, be guilty of larceny in A man may 
stealing his own goods, as he may of robbery in taking his own cases, be 
property from the person of another. If A. bail goods to B., and farceny. in 
afterwards animo furandi take the goods from B., with an intent to ow" foods 
charge him with the value of them, it is felony. And so if A., having baTiee^ 
delivered money to his servant to carry to some distant place, disguise 
himself, and rob the servant on the road, with intent to charge the 
hundred with the loss, according to the provisions of the statute, it 
will be robbery in A. For as against persons so taking even their 
own goods with a wicked and fraudulent intent, there is a sufficient 
temporary special property in the bailee or servant, to support an 
indictment. — lb. 

The real owner of goods will not be deprived either of the property 
or possession in law of them by a felonious taking. If, therefore, A. ^j|p ^fj'^^ot 
steal the goods of B., and afterwards C. steal the same goods from A., ^'^ divested 

D ' o » from the 

in such case C. is a felon, both as to A, and as to B., and he may '■'"*' °^^"^'' 

' ' *' by an mter- 

be indicted for stealing the goods of B. Upon this subject, Gould, ™«'i'»'^ 
J., in delivering the opinion of the twelve judges in a modern case, ^"'''"S- 
said, "it is a rule of law equally well known and established, that the 
possession of the true owner cannot be divested by a tortuous taking; 
and therefore, if a person unlawfully take my goods, and a second 
person take them again from him, I may, if the goods were feloniously 
taken, indict such second person for the theft, and allege in the indict- 
ment, that the goods are my property; because these acts of theft do 
not ehange the possession of the true owner." And he further stated 
it to be his opinion, that the doctrine would also hold, where the goods 
are taken from the possession of the true owner by means of fraud; 
as otherwise a man might derive an advantage from his own wrong. 
But a distinction is taken in the following case. If A. steals the 
horse of B., and afterwards delivers it to C, who was no 
party to the first stealing, and C. rides away with it animo furandi, 
yet C. is no felon to B.; because, though the horse was stolen from 
B, yet it was stolen by A., and not by C, for C. did not take it; 



372 LAW OF MAGISTRATES. 

neither is he a felon to A., for he had it by his delivery. 2d Rus- 
sell, 156. 
siSeiit!^ There is no doubt that there may be a sufficient ownership of the 
is'cmiVa^'^ goods Stolen, in a person who has only a special property in them; 
proj'erty in ^"<^ ^hat they may be laid as the goods and chattels of such person in 
iiie goods. ^j,g indictment. A lessee for yeare, a bailee, a pawnee, a carrier, and 
the like, have such special property; and the indictment will be good, 
if it lay the property of the goods, either in the real owners, or in the 
persons having only such special property in them. So where goods 
belonging to a guest at an inn are stolen, they may be laid to be the 
property either of the inn-keeper or the guest. And linen stolen 
from a washer- woman, by whom it was taken in to wash in the course 
ot her business, may be laid as her goods. In cases of this kind it 
is considered thet the parties have a possessory property; being 
answerable to their employers, and being capable of maintaining an 
appeal of robbery or larceny, and having restitution. It has also 
been holden, that an agister of cattle has such a special property in 
them, that they may be laid as his goods in the indictment. When 
this case was referred to the judges, after the conviction of the prisoner, 
there was at first some doubt upon the point; one of the judges obser- 
ving that an agister of cattle is not liable for them at all events, like 
an inn-keeper for the goods of his guest : but ultimately all the judges 
agreed that the conviction was right. — lb., 157. 
Ownership Clothes and other necessaries provided for children by their parents, 
efc.^of'""'*^^ are often laid to be the property of the parents, especially while the 
children. children are of tender age; but it is holden good either way. There 
are cases, however, . of exclusive property in the children. Thus, in 
a case where the prisoner was charged with stealing wearing apparel, 
the property of John Wilson, and it appeared in evidence that the 
wearing apparel had been furnished by John Wilson to his son George, 
and that the son was nineteen years of age, and bound apprentice to 
his father, who had covenanted to find him in clothing; the Court 
held that the indictment was defective, and that the wearing apparel 
■ was exclusively the property of the son, who had been furnished with 
it in pursuance of the condition of the indentures. — lb., 160. 
Ownership But further, it is well settled that larceny may be committed by 

where the ^ , . , . , 

person of the stealing goods, the owner of which is not known; and that it may be 

owner is ,.,.,. i i i • 

unicnown. stated in the indictment that the things stolen were the goods of a 
person to the jurors unknown. But upon prosecutions of this kind 
some proof must be given sufficient to raise a reasonable presumption 
that the taking was felonious, or invito domino; and Lord Hale, C. 



LAW OF MAGISTRATES. 373 

J., said that he never would convict any person for stealing the goods 
cujusdam ignoli, merely because the person would not give an account 
how he came by them, unless there were proof made that a felony had 
been committed of those goods. It is said, therefore, with respect to 
these cases, that the true ground upon which persons so indicted, may? 
in any instance, claim to be acquitted, when the other facts necessary 
to constitute the crime of larceny, appear upon the evidence, seems to 
be a want of the proper proof that the taking was felonious, or invito 
domino, and not the want of any property in the true owner, who, by 
losing his goods, does not lose his property in them until seizure by 
some other person having aright to seize in such cases. 2d Russ., 162. 

It should be well observed, however, with respect to prosecuiions ^n indie, 
for stealing goods of a person unknown, that an indictment, alleging {,'g®g"g'jaCng^' 
the goods to be the property of a person unknown, will be improper if|he foods' of 
the owner be really known; and that in such case, the prisoner must ^j^^^jj^^^'j, ij- 
be discharged of the indictment so framed, and tried upon a new one , ",^f J*!!" 
for stealing the goods of the owner by name. In a case, where the "g^Uy"^ 
prisoner was charged with stealing a box of goods from a stage-coach, ''"°^^"' 
one of the counts of the indictment, which stated the box to be the 
property of persons unknown, was rejected by the Court, on the 
ground that where it was in the power of a pleader to state a legal 
proprietor, as in this case, by laying the property to be in the persons 
from whom and to whom the goods were sent, it was improper to lay 
the property as belonging to persons unknown. — Ibid, 

Mixed or compound larceny, is such as has all the properties ofi)j.fl„itj„n, 
simple larceny, but is accompanied with either one or both of the 
aggravations of a taking from one's house or person. 4th B. C, 241. 

Larceny from the house having already been treated of under the division, 
title house-breaking, we proceed to consider larceny from the person, 
which is either, 1st., by open assault, usually called rohhery, or 2d, by 
privately stealing. — Ibid, 243. 

Robbery is the felonious taking of money or goods of any value Definition. 
from the person of another, or in his presence, by violence, or putting 
in fear. — Ibid. 

As to the taking, carrying away, intent, &c., necessary to complete 
the offence, we refer to those matters, under the head o^ simple larceny, 
and proceed to inquire, 

Isf. Of the Taking from the Person or Presence of the Owner. 
2d. Of the Violence, or Putting in Fear. 
2d. Of the Punishment. 



374 



LAW OF MAGISTRATES. 



The taking Of the taking from the Person, iSfc — The taking need not be imme- 

is sumcient ^ c^ ^ j a 

If itbeinthediatelv ffom the person of the owner; it will be sufficient if it be in 

presence of , . . ^ 

tbe oOTier. his presence. Therefore if A., upon being assaulted by a thie' 
throws his purse or cloak into a bush, and the thief takes it up and 
carries it away; or if, while A. is flying from the thief, he lets fall 
his hat, and the thief takes it up and carries itaway, such taking being 
done in the presence of A., will be sufficient. So, if the thief having 
first assaulted A., takes away his horse standing by him; or having 
put him in fear, drives his cattle, in his piesence, out of his pasture, 
he may be properly said to take such property from the person of A. 
for he takes it openly and before his face, while under his immediate 
and personal care and protection. But it is clear, that the property 
must be taken in the presence of the owner. And where it appeared, 
upon a special verdict, that some thieves gently struck the prosecu- 
tor's hand, whereby some money, which he had taken out from his 
pocket to give change, fell to the ground, and that, upon his offering 
to take it up, the thieves threatened to knock his brains out, upon 
which he desisted from taking up the money, and the thieves, "then 
and there immediately''^ took it up; a great majority of the judges 
held, that even by this statement, it was not sufficiently expressed in 
the special verdict that the thieves took up the money in the sight or 
presence of the owner, and that they could not intend it, though there 
seemed to have been evidence enough to have warranted such a 
finding. 2d Russell, 66. 

Of the Violence, SfC.-^\{ it appears that the property be taken by 
either of tliese means, against the will of the party, such taking will 
be sufficient to constitute robbery. The principle, indeed, of rob- 
bery, is violence; but it has been often holden, that actual violence is 
not the only means by which a robbery may be effected, but that it 
may also be effected by fear, which the law considers as constructive 
violence. — Ibid, 67. 

With respect to the degree of actual violence, where the taking is 
efl^ected by that means, it appears to be well settled, that a sudden 
taking or snatching from a person unawares, is not sufficient. Thus, 
where a boy was carrying a bundle, along the street in his hand, after • 
it was dark, when the prisoner ran past him and snatched it suddenly 
away, it was holden that the act was not done with the degree of force 
and terror necessary to constitute robbery. And the same was holden . 
in a case, where it appeared, that as two little boys were carrying a 
parcel of cloth to one of the inns at Bath, for the purpose of its being 
carried by a stage-coach to London, the prisoner came up suddenly, 



Of ihe 

violence, or 
putting in 
fear. 



Of the 
degree of 
violence. 



LAW OF MAGISTRATES. 375 

snatched the cloth from the head of one of them, and ran off with it. 
The same doctrine was also holden in two other cases; in one of 
which, the hat and wig of a gentleman were snatched from his head 
in the street; and in the other, an umbrella was snatched suddenly 
out of the hand of a woman, as she was walking along the street. But 
if any injury be done to the person, or there be any struggle by the 
party to keep possession of the property before it be taken from him, 
there will be a sufficient actual violence. Thus, where an ear-ring 
was snatched froin a lady's ear, and the ear torn through, and blood 
drawn by the force used, it was holden to be robbery. So, where a 
heavy diamond-pin, with a cork-screw stalk, twisted very much in a 
lady's hair, which was close frizzed and strongly craped, was snatched 
out, and part of the hair torn away at the same time, it was holden that 
this was a sufficient degree of violence to constitute robbery. And 
in a case, where it appeared that the prisoner snatched at a sword, 
while it was hanging at a gentleman's side, and that the gentleman, 
perceiving him get hold of the sword, instantly laid tight hold of the 
scabbard, which occasioned a struggle between them, in which the 
prisoner got possession of the sword, and took it away; the Court held 
that it was a robbery. — Ibid, 68. 

Where violence is made use of, to obtain the property with a felo- 
nious intent, it seems that it will not the less amount to robbery, on accompanied 

•' _ with some 

account of the thief having recourse to some colorable or specious colorable and 

^ _ specious 

pretence, in order the better to effect his purpose. One Merriman, pretence, 
who was taking cheeses along the high-way in a cart, was stopped by 
a person named Hall, who insisted upon seizing them for want of a 
permit. This was a mere pretence, no permit being necessary. 
After some altercation, Merriman and Hall agreed to go before a 
magistrate, to determine the matter: and during Merriman's absence, 
other persons riotously assembled on account of the dearness of pro- 
visions, and, in confederacy with Hall, for the purpose, carried away 
the goods. It was objected (upon an action against the hundred, on 
the statutes of hue and cry,) that this was no robbery, because there 
was noforce; but Hewitt, J., over-ruled the objection, and left the 
case to the jury, who were of opinion, that Hall's conduct, in insisting 
upon seizing the cheese for want of a permit, was a mere pretence for 
the purpose of defrauding Merriman, and found that the offence was 
robbery; which was afterwards confirmed by the Court of King's 
Bench, on a motion for a new trial. — Ibid. 

Gascoigne's case. — Where a bailiff hand- cuffed a woman, under 
pretence of carrying her to prison with greater safety, and by violence 



376 



LAW OF MAGISTRATES. 



Of the fear 
of injury to 
the person. 



Such fear 
may be 
presumed, 
though the 
party go to 
meet the 



for the 
purpose of 
appreliend- 
ing him. 



extorted money from her when so hand-cuffed, it was holden to be 
robbery. — Ibid. 

The fear of injury to the person is that which is commonly excited 
on the commissions of this offence; and where property is obtained 
by these means, it will amount \o robbery, though there be no great 
degree of terror or affright in the party robbed. It is enough, if the 
fact be attended with such circumstances of teri'or, such threatening 
by word or gesture, as, in common experience, are likely to create an 
apprehension of danger, and induce a man to part with his property 
for the safety of his person. And it is not necessary tHat actual fear 
should be strictly and precisely provedj as the law, in odium spoliatoris 
will presume fear, where there appears to be a just ground for it. — 
Ibid, 72. 

One Norden having been informed that one of the early stage- 
coaches had been frequently robbed near the town, by a single high- 
way-man, resolved to use his endeavors to apprehend the robber. For 

obber'^and ^^'^^ purpose, he put a little money and a pistol into his pocket, and 
attended the coach in a post-chaise, till the highway-man came tip to 
the company in the coach, and to him, and presenting a weapon, 
demanded their money. Norden gave him the little money he had 
about him, and then jumped out of the chaise with the pistol in his 
hand, and, with the assistance of some others, took the highway-man. 
This was holden to be a robbery of Norden. — Ibid. 

Andthisfear The fear necessary to constitute the crime of robbery may exist, 

may exist, •' j j 7 

though tile though the property be taken under color, and on the pretence of a 

properly be ° ^ 1 ./ ' r 

taken under purchase. For, if a pcrson by force or threats, compel another to 

color and on '^ ' r ./ ' i 

pretence of a give him goods, and by way of color oblige him to take, or if he 
offer less than the value, it is robbery: as where the prisoner took 
a quantity of wheat worth eight shillings, and forced the owner to 
take thirteen pence half penny for it, threatening to kill her if she 
refused, the offence was clearly holden to be robbery by all the 
judges, upon a conference. But whether the forcing a chapman 
to sell his wares, and giving him the full' value for them, will 
amount to robbery, has been considered as doubtful. — Ibid. 
_,. , It seems that the fear of violence to the person of a child of the party 

^?°f . from whom property is demanded, will fall wiihin the same conside- 

violence tn i r j ' 

ration as if the fear were of violence to the person of the party himself. 
Thus, where a case was put in ai-gument of a man walking with his 
child, and delivering his inoney to another person upon a threat, that 
unless be did so, the other would destroy his child; Hotham, B. said, 
that he had no doubt that it would be i-obbery. And in a subsequent 



the child 
of the party, 



LAW OF MAGISTRATES. 377 

case, Eyre, C. J., said, that a man might be said to take by violenco, 
who deprived the other of the power of resistance, by whatever 
means he did it; and that he saw no sensible distinction between a 
personal violence to the party himself, and the case put by one of the 
judges, of a man holding another's child over a river, and threatening 
to throw it in unless he gave him money. — lb. 

The cases in which the offence of robbery has been committed, by ofihe fear 

,■ n /■•■,! r "i • • II "' injury to 

means o: a tear or injury to the property of the party, are principally the property, 
those in which the terror excited, was of the probable outrages of a 
mob. As by a threat to tear the mow of corn, and level the house 
of the prosecutor; or where money is extorted by the prisoner at the 
head of a mob, without any particular threat being expressed; or by 
threat of destroying the house; or by a threat of taking corn awa}', 
by which the prosecutor was compelled to sell it for less than its value; 
or where money is obtained by a threat, that the house of the prose- 
cutor should be pulled down by a mob, at a future time. 2d Russell, 
73 and 74. 

The cases of robbery in which the property has been obtained by of the fear 

•' . of injury to 

means of a fear being excited, of injury to the character of the party the charac- 
robbed, appear to be all of one description. Indeed, it has been 
said, that the terror which leads a party to apprehend an injury to 
his character, has never been deemed sufficient to support an indict- 
ment for robbery, except in the particular instance of its being excited 
by means of insinuations against, or threats to destroy the character 
of the party pillaged, by accusing him of sodomidcal practices. The 
fear of being sent to prison, is not alone a sufficient ground of terror 
to constitute robbery. — lb , 75. 

But parting with property upon the charge of an unnatural crime, parting with 
will not make the taking a robbery, if it is parted with, not from fear fo^th'e"''''' 
of loss of character, but for the purpose of prosecuting the offender, afterwards 
The prisoner applied to Fry to lend him ten shillings, and upon his the°offeiider 
refusal, threatened to charge him with an unnatural crime, and got amountto 
from him one pound, ten shillings. Fry parted with it from an anx- '^° '"^' 
iety that his master's family might not be disturbed, and in expectation 
that he might secure the prisoner; and he immediately stated the 
circumstances to his master, and to a friend, and planned with them 
what he should do in case of the prisoner applying again. The pris- 
oner did apply again; and Fry, fixed to meet him, marked some 
money, engaged a constable, and having met the prisoner, gave him 
the money, and had him apprehended : he parted with this money in 
order that he might prosecute, because he knew himself innocent, and 
48 



378 LAW OF MAGISTRATES. 

not from the threats. Upon a case reserved, the judges held that 
this taking did not constitute a robbery, and the prisoner was recom- 
mended for a limited pardon. — lb., 87 
Death with- Punishment. — By 23 Henry 8th, c. 1st; 2d S. L., 459, robbery, 

.out benefit of , •,. i • i n- i . i i , . • 

clergy. when committed in a dwellmg house, or in or near al)out the high- 

ways, was punished with death, without benefit of clergy; and by 3 
and 4 W. & M., c. 9, it is enacted that robbery, wheresoever com- 
mitted, shall be thus punished. 

Privily stealing from the person. — With respect to such stealing from 
the person as does not amount to robbery, it is enacted by 8th Eiiz. , 
c. 4, that no person or persons which hereafter shall happen to be 
indicted or appealed for felonious taking of any money, goods or 
chattels, from the person of any other, privily without his knowledge, 
in any place whatsoever, and thereupon found guilty by verdict of 
twelve men, or shall confess the same upon his or their arraignment, 
or will not answer directly to the same according to the laws of this 
realm, or shall stand wilfully, or of malice, or obstinately mute, or 
challenge peremptorily above the number of twenty, or shall be upon 
such indictment or appeal, outlawed, shall from henceforth be admitted 
to have the benefit of his or their clergy, but utterly be excluded 
thereof, and shall suflfer death in such manner and form, as they 
should if they were no clerks. 2d S. L., 496, sec. 2. 



LIBEL. 

A libel is such an immodest, indecent, and immoral publication, 
as tends to corrupt the mind and to destroy the love of decency, 
morality and good order: or, it is a malicious defamation of any 
person made public by printing, writing, signs or pictures, tending to 
blacken the memory of the dead, with intent to provoke the living, 
or to injure the reputation of the living, provoke him to wrath, or 
expose him to hatred, contempt or ridicule. 1st Russ., 209; and 6th 
Am. C. L., 425. 

1st. Difference between Libel and Slander. 

2d. Libellous words, and mode of expressions. 

3d. Of the Publication, and persons concerned therein. 



LAW OF MAGISTRATES. 379 

4th, The Circumstances which will prevent a Publication 

FROM BEING LiBELLOUS. 

5th. Of the Malice. 
6th. Of the Punishment. 

1*^ Difference between Libel and Slander. 

It does not follow that the libel is not actionable, because words 
ofsimilar import, when spoken, are held not to be so; for the rule 
with respect to written slander, is different from that which prevails 
when it is only verbal. Words, to be actionable when spoken of a 
person not in any office, trade or profession, must imply the imputa- 
tion of an offence which would subject him to corporal, or other infa- 
mous punishment; but words, when written, if they tend to degrade 
or disgrace, or to render odious or ridiculous the person of whom 
ihey are written, will be libellous, and consequently actionable. 
This distinction between written and verbal slander, is abundantly 
established by the most unquestionable authority. Austin vs. Cul- 
pepper, 2d Show, 314; Warner vs. EUizer, 1st Keb., 293. 

An action lies for scandalizing a man by words, which, if spoken, 
would not subject him to prosecution. — lb. 

And words, which when spoken, may be considered not defamatory, 
are, when reduced to writing. Thorley vs. Lord Kerry, 4th Taun. 355. 

As to say a man is dishonest is not actionable, but when published 
they become so. Rex vs. Smith, Skin., 124. 

So also, in slander, the defendant may justify that the words spoken 
are true; but on indictment for libel, it is immaterial whether the 
matter be true or false, since the provocation, and not the falsityj is 
to be punished criminally. 4th B, C, 151. 

2d. Libellous words, and modes of expressions. 

To constitute a libel, the words published must be such as, in the 
common estimation of mankind, are calculated to reflect shame and 
disgrace upon the person concerning whom they are written. Fonville 
vs. McNease, Dud., 303. 

A libel may be as well by descriptions and circumlocutions as inofthemodes 
express terms; therefore scandal conveyed by way of allegory or irony, of expression 
amounts to a libel. As where a writing, in a taunting manner, 
reckoning up several acts of public charity done by a person, said* 
"you will not play the Jew, nor the hypocrite," and then proceeded^ 
in a strain of ridicule, to insinuate that what the person did was 
owing to his vain glory. Or where a publication, pretending to 



3S0 LAW OF MAGISTRATES. 

recommend to a person the characters of several great men for his 
imitation, instead of taking notice of what great men are generally 
esteemed famous for, selected such qualities as their enemies accuse 
them of not possessing; (as by proposing such a one to be imitated 
for his courage; who was known to be a great statesman, but no sol- 
dier; and another to be imitated for his learning who was known to 
be a great general, but no scholar;) such a publication being as well 
understood to mean only to upbraid the parties with the want of these 
qualities, as if it had done so directly and expressly. And, upon the 
same ground, not only an allegory but a publication in hieroglyphics, 
or a rebus or anagram, which are still more difficult to be understoood, 
maybe a libel; and a Court, notwithstanding its obscurity and per- 
plexity, shall be allowed to judge of its meaning, as well as other 
persons. And it is now well established, that slanderous words must 
be understood by the Court in the same sense as the rest of mankind 
would ordinarily understand them. Formerly it was the practice to 
say that words were to be taken in the more lenient sense; but that 
doctrine is now exploded; they are not to be taken in the more 
lenient or more severe sense, but in the sense which fairly belongs 
to them, and which they were intended to convey. 1st Kuss., 210. 
Upon the same^^^inciples, it has been resolved that a defamatory 
persoa writing, expressing only one or two letters of a name, in such a man- 

libelledin o 1 = .' ) 

blanks ner that from what goes before, and follows after, it must needs be 

understood to signify a particular person, in the plain, obvious, and 
natural construction of the whole, and would be nonsense it strained 
to any other meaning, is as properly a libel, as if it had expressed the 
whole name at large; for it brings the utmost contempt upon the law 
to suffer its justice to be eluded by such trifling evasions; and it is a 
ridiculous absurdity to say that a writing, which is understood by 
every one cf the meanest capacity, cannot possibly be understood by 
a judge or jury. — lb. 

The most simple idea of a libel, is where defamatory malice is 
reduced to writing. But it may also be by the exhibition of a picture, 
fixing a gallows at a man's door, burning him in efUgy, or exhibiting 
him in any ignominious manner, 4th B. C, 149; note. 

3d. OfthePuhUcation,dfc. 

No one is indictable for writing a libel unless he actually publish 
it to the world; but the commimication thereof to any one person is 
a publication in the eye of the law, and therefore the sending an abu- 
sive letter to a private person, is as much a libel as if it were openly 



LAW OF MAGISTRATES. 381 

printed. 2d Tomlins, 432. But in the case of Fonville vs. McNease, 
it was held, that sending such sealed letter, though good ground for 
indictment, would not sustain a civil action for damages. Dudley, 
303. 

If one man repeats a libel, another writes it, and a third approves ofthe 
what is written, they will all be makers ofthe libel; and it may be laid publication 
down generally that all who are concerned in composing, writing, 
and publishing a libel, are guilty ofthe misdemeanor, unless the part 
they had in the transaction was a lawful or an innocent act; and 
ignorance has been held not to excuse. Thus, upon an information 
against the defendant, for printing and publishing a libel, the evidence 
was, that he acted as a servant to the printer, and clapped down the 
press; and few or no circumstances were offered of his knowing the 
import ofthe paper, or being conscious that he was doing any thing 
illegal: and Raymond, C. J., held, that this made the defendant 
guilty, and so the jury found him. But there must be a publication; 
and the mere writing or composing a defamatory paper by any one, 
which is confined to his closet, and neither circulated nor read to 
others, will not render him responsible; nor will he be held to have 
published the paper, if he deliver it by mistake, out of his study. 
And it will not be a publication of a libel if a party takes a copy of it, 
provided he never publishes it: but a person who appears once to have 
written a libel, which is afterwards published, will be considered as 
the maker of it, unless he rebut the presumption of law by showing 
another to be the author, or prove the act to be innocent in himself. 
For by Holt, C. J., if a libel appears under a man's hand-writing, and 
no other author is known, he is taken in the manner, and it turns the 
proof upon him; and if he cannot produce the composer, it is hard to 
find that he is not the very man. 1st Russell, 234. 

The reading of a libel in the presence of another, without previous 
knowledge of its being a libel, or the laughing at a libel read by 
another, or the saying that such a libel is made by J. S., whether 
spoken with or without malice, does not amount to a publication. And 
it has also been held, that he who repeats part of a libel in merri- 
ment, without any malice or purpose of defamation, is not punishable; 
though this has been doubted. But it seems to have been agreed, 
that if he who hath either read a libel himself, or hath heard it read 
by another, do afterwards maliciously read or repeat any part of it in 
the presence of others, or lend or show it to another, he is guilty of 
an unlawful publication of it. In a late case, however, of an action 
for a libel contained in a caricature print, where the witness stated, 



382 LAW OF MAGISTRATES. 

that having heard that the defendant had a copy of this print, he went 
to his house and requested liberty to see it, and that the defendant 
thereupon produced it, and pointed out the figure of the plaintiff and 
the other persons it ridiculed; Lord Ellenborough, C. J., ruled, that 
this was not sufficient evidence of publication to support the action. 
Proof that the libel was contained in a letter directed to the party, 
and delivered into the party's hands, is sufficient proof of a publication 
upon an indictment or information. And delivering a libel sealed, in 
order that it may be opened and published by a third person in a dis- 
tant county, is a publication. 1st Russell, 235. 
Procuring ^^ seems to be agreed, that not only he who publishes a libel him- 
pubiis1[/° ^^^^-i ^^^ ^^^0 he who procures another to do it, is guilty of the publi- 
cation; and it is held not to be material whether he who dispersris a 
libel knew any thing of the contents or effects of it or not, for that 
nothing would be more easy than to publish the most virulent papers 
with the greatest security, if the concealing the purport of them from 
an illiterate publisher would make him safe in dispersing them. 1st 
Russell, 236. 
Publications jjpon this foundation it has for a long time been held, that the buying 
sellers and of a book or paper containing libellous matter, in a bookseller's shop, 

proprietors ' _' ° _ . 

ofnewspa- is sufficient evidence to charge the master with the publication, 
although it does not appear that he knew of any such book being 
there, or what the contents thereof were, and though he was not upon 
the premises, and had been kept away for a long time by illness; and 
it will not be presumed that it was bought and sold there by a stran- 
ger; but the master must, if he suggests any thing of this kind in his 
excuse, prove it. So the proprietor of a newspaper is answerable 
criminally as well as civilly for the acts of his servants in the publi- 
cation of a libel, although it can be shown that such publication was 
without the privity of the proprietor. These are acts done in the 
course of the trade or business carried on by the master. But in a 
case of an action for a libel, where it appeared upon the evidence that 
the defendant, a tradesman, was accustomed to employ his daughter 
to write his bills and letters: that a customer, to whom a bill, written 
by the daughter, had been sent by the daughter, sent it back on the 
ground of the charge being too high, and that the bill was afterwards 
returned to the customer, enclosed in a letter also written by the 
defendant's daughter, and being a libel upon the plaintiff who had 
inspected and reduced the bill fl)r the customer: it was holden that ihis 
was not sufficient evidence to go to a jury, either of command, autho- 
rity, adoption, or recognition by the defendant. — Ibid. 



pers, 



LAW OF MAGISTRATES. 383 



4//t. The circumstances which tcill prevent a Publication from being 

libellous. 

It has been resolved, that no false or scandalous matter contained in petitions to 
a petition to a committee ot' Parliament, or in articles of the pp^'Ce ^^^ Jfj]^™'' 
exhibited to justices of the peace, or in any other proceeding in a^ proceedings, 
regular course of justice, will make the complaint amount to a libel; 
for it would be a great discouragement to suitors to subject them to 
public prosecution in respect of their application to a Court of jus- 
tice. Thus, where a charge was, that the defendant, in a certain 
affidavit before the Court, had said that the plaintifFin a former af!i. 
davit against the defendant had sworn falsely, the Court held that this 
was not libellous; for in every dis^^pute in a Court of justice, where one 
by affidavit charges a thing, and the other denies it, the charges must 
be contradictory, and there must be affirmation of falsehood. It is 
also held that no presentment of a grand jury can be a libel, not only 
because persons who are supposed to be returned without their own 
seeking, and are sworn to act impartially, shall be presumed to have 
proper evidence fi)r what they do, but also because it would be of ihe 
utmost ill consequence in any way to discourage them from making 
their inquiries with that freedom and readiness which the public good 
requires. Where an action was brought against the president of a milita- 
ry Court of Inquiry, for a libel contained in the minutes of such Court, 
which had been delivered by the defendant to the commander in chief, 
and deposited in his office; it was held that these minutes were a pri- 
vileged communication, and properly rejected when tendered at the 
trial in proof of the alleged libel; and also that a copy of them had 
been properly rejected. And where a court martial, after stating in 
their sentence the acquittal of an officer against whom a charge had 
been preferred, subjoined thereto a declaration of their opinion, that 
the charge was malicious and groundless, and that the conduct of the 
prosecutor in falsely calumniating the accused, was highly injurious to 
the service; it was held that the president of the court-martial was 
not liable to an action for a libel for having delivered such sentence 
and declaration to the Judge Advocate; and Mansfield, C. J., in deli- 
vering his opinion, said, "if it appear that the charges are abso- 
lutely without foundation, is the president of the court-martial to remain 
perfectly silent on the conduct of the prosecutor; or can it be any 
offence for him to state that the charge is groundless and malicious?" 
Ist Russell, 213. 



384 LAW OF MAGISTRATES. 

Where words charged as libellous, are uttered in a judicial pro- 
ceeding, and constitute the necessary information for obtaining a 
search warrant, an action for a libel cannot be sustained. The infor- 
mation is a part of the proceeding, and cannot be considered as a 
libellous publication. If the proceeding originated in malice, and 
without any reasonable or probable cause, the remedy is an action on 
the case, for maliciously sueing out a search warrant. Vausse vs. 
Lee, 1st Hill, 197. 
How far It has always been held, that a publication of the proceedings in a 

of proceed- court of justice wiU not be protected, unless it be a true and honest 
o'nusuceis statement of those proceedings. But provided it were of that charac- 
°^^ ^' ter, the doctrine seems atone time to have been, that it might be made 
to the full extent of stating what had actually taken place. More 
recently, however, it has been said, that it must not be taken for 
granted that the publication of every matter which passes in a court 
of justice, however truly represented, is, under all circumstances, and 
with whatever motive published, justifiable; and that such doctrine 
must be taken with grains of allowance. And Lord Ellenborough, 
C. J., said, — "It often happens that circumstanceK necessary lor the 
sake of public justice to be disclosed by a witness in a judicial inquiry, 
are very distressing to the feelings of individuals on whom they reflect; 
and if such circumstances were afterwards wantonly published, I should 
hesitate to say that such unnecessary publication was not libellous, 
merely because the matter had been given in evidence in a court of 
justice." In a subsequent case, not relating directly to this point, but 
to the publication of proceedings in Parliament, Bailey, J., said, — 
"It has been argued that the proceedings of courts of justice are open 
to publication. Against that, as an unqualified proposition, I enter 
my protest. Suppose an indictment for blasphemy, or a trial where 
indecent evidence was necessarily introduced; would every one beat 
liberty to poison the minds of the public, by circulating that, which, 
for the purposes of justice, the Court is bound to hear? I should think 
not; and it is not true, therefore, that in 2II instances, the proceedings 
of a court of justice may be published. Again, it may be said that 
counsel have a right, in pursuance of their instructions, and whilst 
the cause is going on, to endeavor to produce an effect by making 
such observations on the credit and character of parties and their wit- 
nesses as sometimes, when the cause is over, perhaps they are sorry 
for. But have they, therefore, or any person who hears them, a 
right afterwards to publish those observations? I have no hesitation 
in saying that when the occasion ceased, the right also would cease; 



LAW OF MAGISTRATES. 385 

and that it would be no justification to plead that such a publication 
was a transcript of the counsel's speech." Ist Russ., 214. 

This doctrine was recognized and acted upon in a recent case. 
The defendant's husband had been convicted of publishing a blasphe- 
mous libel, after having in his defence at the trial used arguments and 
statements of a blasphemous and indecent description. His wife 
published the trial; and upon showing cause against a rule for a 
criminal information, it was urged that she had a right to publish 
what actjallj took place in a Court of justice; but the Court were 
clear she had not, if that statement contained any thing defamatory, 
seditious, blasphemous, or indecent : and the rule was made absolute. 
And where it is allowable to publish what passes in a Court of justice 
the party must publish the whole case, and not merely state the con- 
elusion which he himself draws from the evidence. Thus, v/here the 
libel stated in the declaration purported to be a speech of counsel at 
a trial of the plaintiff on a criminal charge, and, afier setting out the 
speech, said that a witness was called who proved all that had been 
stated by counsel, and that the defendant was immediately afterwards 
acquitted upon a defect in proving some matter of form; and the plea 
stated that in fact such a speech was made, and that the witness 
called proved all that had been so stated, but it did not set cut the 
evidence or justify the truth of the charges made in the counsel's 
speech; it was holden that such plea was bad, inasmuch as a party 
co'jld not be justified in publishing the result of evidence given in a 
Court of justice, but must state the evidence itself. And the party 
making the publication will not be jicufied, unless he confines himself 
to what actually passed in Court, m a case where an action was 
brought for a libel concerning the plarintifT in his profession as an 
attorney, and the libel, as stated In the declaration, began, "shameful 
conduct of an attorney," and then proceeded to give an account jf 
proceedings in a Court of law which contained matter injurious to 
the plainlifT's professional character, and the defendant had pleaded 
that the supposed libel contained a true account of the proceedings 
in the Court of law; it was holden (after verdict for the defendant) 
that the plea was bad, inasmuch as the words "shameful conduct of 
an attorney," formed no part of the proceedings in the Court of law, 
and that the plaintiff was therefore entitled to judgement. 1st Rus- 
sell, 215. 

It should be observed also, that the publication of preliminary Publications 

1 /. . , ... of ex parte 

exammations before a magistrate, taken ex parte, will not come examina- 

within the principle by which the fair reports of proceedings in Courts a magistrate, 
49 



386 LAW OF MAGISTRATES. 

maybe of justice have been beld to be privileged. Such publications have 
a tendency to cause great mischief by perverting the public mind, 
and disturbing the course of justice; and, if they contain libellous 
matter, will be considered as highly criminal. And the Court of 
King's Bench has gone to the extent of granting a criminal informa- 
tion, for publishing in a newspaper a statement of the evidence given 
before a coroner's jury, accompanied with comments; although the 
statement was correct, and the party had no malicious motive in the 
publication. 1st Russ., 216. 
commentB A publication commenting upon a literary work, exposing its follies 
pfoduct?oi^' ^"^ errors, and holding up the author to ridicule, will not be deemed 
a libel, provided such comment does not exceed the limits of fair and 
candid criticism, by attacking the character of the writer, unconnected 
with his publication; and every one has a right to publish a comment 
of this description. But if a person, under the pretence of criticising 
a literary work, defames the private ^aracter of the author, and, 
instead of writing in the spirit and for the purpose of fair and candid 
discussion, travels into co'lateral matter, and introduces facts not 
stated in the work, accompanied with injurious comments upon them, 
such person is a libeller. A fair and candid comment on a place of 
public entertainment, in a newspaper, is not a libel. 1st Russell, 
230. 

Confidential comrnunications are in some cases privileged. As 
Confidential where it was holden that a letter written confidentially to persons who 
tions. employed A. as their solicitor, conveying charges injurious to his 

professional character in the management of certain concerns which 
they had entrusted to lim, and in which B., the writer of the letter, 
was likewise interested, was not a libel. And if a person, in a 
private letter to the party, should expostulate with him about some 
vices, of which he apprehends him to be guilty, and desires him 
to refrain from them; or if a person should send such a letter to a 
father, in relation to some faults of his children; these, it seems, 
would not be considered as libellous, but as acts of friendship, not 
designed for defamation, but reformation. But this doctrine must be 
applied with some caution; since the sending an abusive letter filled 
with provoking language to another, is an offence of a public nature, 
and punishable as such, inasmuch as it tends to create ill blood, and 
cause a disturbance of the public peace; and the reason assigned by 
Lord Bacon, why such private letter should be punishable, seems to 
be a very sufficient one, namely, that it enforces the party to whom 
the letter is directed to publish it to his friends, and thus induces a 



LAW OF MAGISTRATES. 387 

compulsory publication. And though a letter written by a master, 
in giving a character of a servant, will not be libellous, unless its 
contents be not only false, but malicious; yet in such a case malice 
maybe inferred from the circumstances. 1st Russ., 231. 

Although that which is written may be injurious to the character commumca- 
of another, yet if done bona fide, or with a view of investigating a fact, bona fide, or 
in which the party making it is interested, it is not libellous. Thus,of inves.'iga- 
where an advertisement was published by the defendant at the insti- '"^* *'^'' 
gation of A., the plaintiff's wife, for the purpose of ascertaining 
whether the plaintiff had another wife living when he married A.; 
it was holden, that although the advertisement might impute bigamy 
to the plaintiff^ yet having been published under such authority, and 
with such a view, it was not libellous. And if the communication ^,,^^^^5^ 
be made in the regular and proper course of a proceeding, it will Jour^e'of « 
not be libellous. As where a writing, containing the defendant's p™"^'''"** 
case, and stating that some money, due to him from the government 
for furnishing the guard at Wiiitehall with fire and candle, had been 
improperly obtained by a captain C, was directed to a general officer, 
and the four principal officers of the jruards, to be presented to his 
Majesty for redress; an information was refused, on the ground that 
the writing was no libel, but a representation of dipinjury drawn up 
in a proper way for redress, without any intention to asperse the pros- 
ecutor; and that though there was a suggestion of fraud, yet that is 
no more than is contained in every bill in chancery, which is never 
held libellous if relative to the subject matter. So a petition addressed 
by a creditor of an officer in the army to the Secretary at War, bona 
fide, and with the view of obtaining, through his interference, the 
payment of a debt due, and containing a statement of facts which, 
though derogatory to the officer's character, the creditor believed to 
be true, is not a malicious libel, for which an action is maintainable. 
And where the defendant, being deputy-governor of Greenwich hos- 
pital, wrote a large volume, containing anaccoiuit of the abuses of the 
hospital, and treating the characters of many of the officers of the 
hospital, (who were public officers,) and Lord ISandwich in particular, 
who was first Lord of the admiralty, with much asperity; and printed 
several copies of it, which he distributed to the governors of the hospi- 
tal only, and not to any other person; the rule for an information 
was discharged. Lord Mansfield said, that \.\\U distribution of the 
copies to the persons only who were from ih-iir situations called 
on to redress these grievances, and had, from tiieir situations, com- 
petent power to do it, was not a publication sufficient to make the 



388 LAW OF MAGISTRATES. 

writing a libel. And where the publication is an admonition, or in 
^he course of the discipline of a religious sect, as the sentence of 
expulsion from a society of Quakers, it is not libellous. And it has 
been decided that an action will not lie for words innocently read as 
a story out of a book, however false and defamatory they may be. 
Thus, where a clergyman, in a sermon, recited a story out of Fox's 
Martyrology, that one G. being a perjured person, and a great per- 
secutor, had great plagues inflicted upon him, and was killed by the 
hand of God; whereas in truth he never was so plagued, and was 
himself actually present at the discourse; the words being delivered 
only as a matter of history, and not with any intention to slander, it 
was adjudged for the defendant. — lb. 

5th. Of the Malice. 
The criminal intention of the r'c'endant will be matter of infer- 

rriminal 

inientionof ence from the nature of the publicaiion. In order to constitute a 

the Ucieiid- 

ant. libel, the mind must be in fault, and -how a malicious intention to 

defame; for, if published inadvertently, it will not be a libel; but 
where a libelJotJS publication appears, unf^xplained by any evidence, 
the jury should judge from the overt act; and where the publication 
contains a charg^landerous in its nature, should from thence infer 
that the intention was malicious. The intention may be collected 
from the libel, unless the mode tf publication, or other circumstances 
explain it; and the publisher mug be presumed to intend what the 
publication is likely to produce; so that if it is likely to excite sedition, 
he must be presumed to have intended that it should have that effect. 
Publishing what is a libel, without excuse, is indictable, though the 
publisher be free from what in common parlance, is called malice; for 
defaming wilfully, without excuse, is in law, malicious. 1st Russell, 
243. 

Qlh. Of the Punishment. 

The punishment of libellers, for either making, repeating, printing 
or publishing the libel, is fine, and such corporal punishment as the 
Couri iu its discretion shall inflict; regarding the quality of the 
oflTence and the quality of the oflTender. 1st Haw. P. C, 357. 



LAW OF MAGISTRATES. 389 



LIMITATIONS. 

1st. Of Prosecutioivs. 
2d. Of Action.?. 

1st. Prosecutions. 
In all and every case where any penalty, fine, or forfeiture what- 
ever, hath been or shall bo hereafter inflicted or imposed by any Act Where no 

time ig 

or Acts of the General Assembly of this Province, already passed, or limited, aii 

1 r 1 111- r- •I'rr-i prosecutlons 

hereafter to be passed, and the time of prosecuting the offender or tor penalties 
offenders against such Acts not thereby provided, no information, tures must 

1 11 1 1 1 • II 1 be commen- 

action, suit, or prosecution shall be had, issued, brought, or com men- ced within 

1 . 1 rr- ' m ^ • 1 I . .six months 

ced against the ofiencier, or offenders against any such Act or Acts, after otience 

for or in respect of any such penalty, fine, or forfeiture, unless the 

same be done within six months after the time of passing this Act, if 

the offence hath been already committed, and within the lilie space 

of time after the offence committed for the future; and all and every \ 

offender and offenders against any such Act or Acts, shall not from 

thenceforth be subject or liable to any penalty, fine or forfeiture, 

which may thereby be inflicted or imposed; any law, usage or custom, 

to the contrary thereof in any wise notwithstanding. 3d S. L., 701. 

Tiie statute of limitations bars an indictment for hog stealing, if not 
commenced within six months after the offence. State vs. Young- 
blood, 2d McCord, 241. * 

The statute of limitations confining prosecutions for fines and for- 
feitures to six months, relates not to the fine inflicted upon a white 
person for murdering a slave, nor does it seem to relate to the pun- 
ishment by fine or otherwise, of any felony. State vs. Taylor, 2d 
McCoid, 483. 

The Act of 1748, limiting the time for commencing prosecutions 
in respect of penalties, fines, and forfeitures, imposed by statute to 
six months after the offence committed, is no bar to an indictment for 
forgery, under the Act of 1801. The Act of 1748 relates only to 
pecuniary penalties, imposed by statute, and does not apply either to 
the common law punishment of an offence, for which further penalties 
are provided by statute, or to any corporal punishment imposed by a 
statute. State vs. Fields, 2d Bailey, 554. 

A prosecution under the Act of 1817, for trading with a slave, not x 
commenced until six months after the offence, is not barred by the \ 
Act of 1748, as regards the imprisonment. Corporal punishment is \ 
not embraced in the words "penalty or forfeiture," both of which i 



390 



LAW OF MAGISTRATES. 



The limlta 

tioiinf 

certain 

personal 

actions. 



were intended to apply to cases where the punishment is pecuniary 
only. — State vs. Free, 2d Hill, 628. 

If a fine or forfeiture, imposed by statute, be not prosecuted or sued 
for within the six months, it- may be taken advantage of by plea in 
bar, or motion in arrest of judgement. State vs. James, 2d Bay, 215. 

'2d . Of Actions. 

Ist, The Bar of the Statute. 

2d. Exceptions and Matters which will revive the Right of Action, 
or prevent the Bar of the Statute. 

The Bar of the Statute. — All actions of trespass quare clausum 
fregif, all actions of trespass detinue, action sur trover and replevin, 
for taking away of goods and chattels, all actions of account and upon 
the case (other than such accounts as concern the trade of merchan- 
dize between merchant and merchant, tlieir factors or servants,) all 
actions of debt, grounded upon any lending or contract without 
specialty, all actions of debt for arrearages of rent reserved by inden- 
ture, all actions of covenant, and all actions of assault, menace, 
battery, wounding and imprisonment, or any of tliem, which shall be 
sued or brought at any time after the ratification of this Act, shall be 
commenced and sued within the time and limitation hereafter 
expressed, and not after: that is to say, the said actions upon the case 
other than for slanders, and the said actions for accounts, and the said 
actions for trespass, debt, detinue and replevin, for goods and chattels, 
the said actions of covenant, and the said actions of quare cJaiistim 
fregit, within three years next after the ratification of this Act, or 
within four years next after the cause of such actions or suits, and not 
after; and the said actions of trespass, of assault and battery, wound- 
ing, imprisonment, or any of them, within one year next after 
the ratification of this Act, or within one year next after the 
cause of such actions or suits, and not after; and the said actions upon 
the case of words, within six months after the ratification of this Act, 
or within six months next after the words spoken, and not after. 2d 
S. L., 585, sec. 6th. 

In all bills of sale hereafter to be made of any negroes, plate, gold 
redemption g^jj silver, or goods and chattels whatsoever, by way of mortgage, 
gooJsor •with rieht of redemption upon performance of proviso in the said bill 

chattels. ° i r r i 

sold by way of sale, and that the negroes, plate, gold and silver, or goods and 

of mortgage ,, , ,. , , , ^ ^ ■„ ^ 

hereafter, chattels, are actually delivered unto the person to whom such bill ot 
sale is made, and are in his actual possession, (and not a delivery or 
Beizin in form of law only,) and shall continue in the same for the 



Time for 



LAW OF MAGISTRATES. 891 

space of two years after the breach of the proviso in the said bill of 
sale, without redemption thereof, the said goods or chattels so sold 
and delivered, and possessed as aforesaid, though with right or equity 
of redemption, are hereby decl:i]td to be vested in the said person or 
persons to whom such bill of - 'le was made, and their executors, 
administrators and assigns, to have and to hold to them, their execu- 
tors, administrators and assigns, as their own proper goods and 
chattels for ever; excepting such person or persons having such'right 
or equity of redemption, be beyond the seas, or otherwise out of the 
limits of this Province, or a. feme covert, all which persons shall have 
saved to them their equity of redemption, so as they prosecute the 
same within three years after the breach of the proviso of the bill of 
sale, and at no time after. 2nd S. L., 587, sec. 15. 

The limitaton of actions is of the lex fori, not of the lex loci con- 
tractus: therefore, to an action in the Courts of this State, on a 
contract made in another State, the statute of limitations of this State 
is a bar, although the action would not be barred by the statute of 
limitations of the State, in which the contract was made. Levy vs. 
Boas, 2d Bailey, 217. 

Four years peaceable possession of negroes or other chattels, under 
a bona fide sale for valuable consideration, gives the possessor a 
good title against a sheriff who may attempt to levy on them, as the 
property of a former proprietor, &c., under the pretence that they 
were bound by a former execution in his office. Trespass will lay 
against a sheriff who seizes negroes as the property of a third person, 
after they have been four years in the possession of a bona fide pur- 
chaser. Cholett vs. Hart; 2d Bay, 156. 

The executor of A. was sued on a note of hand; plea, statute ot 
limitations; replication, that by the Act of 1789, nine months are 
allowed to executors and administrators after the death of their testa- 
tor or intestate, before they can be sued, and that the plaintitT ought 
not to be barred, having been restrained by the aforesaid Act nine 
months, from commencing his action. Held, that the plaintiff was 
allowed four years exclusive ot the nine months. Moses vs. Jones, 
2d N. & M'C, 259. 

The Act of 1789 suspends the operation of the statute oflimitatioi\s 
nine months after the death of the testator or intestate, but does not take 
from the plaintiff any part of the four years allowed by the act of 
limitations. — lb. ♦ 

On a note payable on demand, the maker is bound to pay immedi- 
ately, and is not entitled to days of grace. The holder may sue on 



392 LAW OF MAGISTRATES. 

the same day the note is made. Any other demand than hy suit is 
unnecessary. Smith vs. Byihewood, Rice, 245. 

Whenever the plaintiff may sue the defendant, a cause of action 
may be said to have accrued to him, and from that time the statute of 
limitations begins to run; consequently, upon a note payable on 
demand, the statute commences from the date, if it have one, and if 
without date, from its delivery. — Ibid. 

The statute of limitations will run in favor of a private agent, to 
collect and pay over money from the time he collects it. Estes vs. 
Stokes, 2d Rich., 133. 

A creditor, by proceeding jointly against the principal and 
surety to a note, and recovering judgement against only the 
surety, cannot effect the rights of the latter against his principal. 
And where, in such a case, a verdict was ibund for the principal, and 
against the surety, the record will not conclude the surety afterwards 
in an action against the principal to recover back the money paid by 
him, from shewing that the debt was that of the principal. Lapse of 
time from the date of the note in such case, affords no presumption in 
favor of the defendant. The plaintiffs right of action only accrues on 
the payment of the debt, and the statute of limitations then commences 
to run. Peters vs. Barnhill, 1st Hill, 234. 

A judgement in the Court of a justice for the trial of causes small 
and mean, is within the operation ofthe statute of limitations. It is 
not matter of record. Griffin vs. Heaton, 2d Bailey, .58. 

The second section ofthe Act of 1712, limiting the time for the 
prosecution of a right or title to lands to five years, is altered so to 
extend the time for the prosecution of such right or title to ten years. 
6th S. L., 238, sec. 7th. 

The statute of limitations runs against dower. Ramsay vs. Dozier, 

1st Treadway C. R., 112. 

Proviso, if Exceptions, (SfC. — If any person or persons is or shall be entitled to 

beyond tiie ^''-y such action of trespass, detinue, action sur trover, replevin, actions 

covert/ fcc!^ of ^*^<^o""t^> actions of debts, covenant, actions of trespass for assault, 

menace, battery, wounding or imprisonment, actions upon the case 

for words, at the time of any such cause of action given or accrued, 

shall be beyond the seas, or feme covert, or imprisoned, shall be at 

liberty to bring their action at any time within four years after the 

ratification of this Act; or at any time within five years after such 

cause of action given or accrued, and at no time after; and also 

excepting any person or persons that are under the age of twenty. one 

years, who shall be allowed to bring their action at any time within 



LAW OF MAGISTRATES. 393 

two years after they came to age, and if beyond the seas, three years. 
2d S. L.,586, sec. 10. 

By the saving words in our statute of limitations, "beyond seas," 
is meant, "out of the State." Forbes vs. Foot, 2d M'Cord, 331. 

Persons under tvi^enty-one years, shall be allowed five years tifter infants. 
attaining the said age, to prosecute their right or title to lands; four 
years after attaining such age to prosecute any personal action to 
which they are or may be entitled; any thing in the Act passed 
the twelfth day of December, one thousand seven hundred and twelve, 
to the contrary hereof in any wise notwithstanding. 5th S, L., 77, 
sec. 2d. 

The statute of limitations shall not hereafter be construed to defeat 
the rights of minors, when the siatute has not barred the right in 
the lifetime of the ancestor, before the accrual of the right of the 
minor. 6th S. L., 238, sec. 5th. 

But this relates to actions concerning lands, McCullough, vs. Speed, 
3d McCord, 455; and the rule, that when the statute begins to run, 
it will run on notwithstanding any intervening disability, still prevails 
as to personal property. Barino vs. McGee, 3d McCord, 452. 

Mutual accounts, to prevent the bar of the statute of limitations, Accounts 
are, where each party has an open, unsettled account against the other, ^erdiMts. 
arising at the same time, and existing together. Cunningham vs. 
Green, Dudley, 351. 

A demand on the part of the defendant, arising subsequent to that 
of the plaintiff, cannot be regarded as a mutual account. — lb. 

If there be mutual running accounts between others than mer- 
chants, and any of the items have accrued within the time of the 
statute, this amounts to an acknowledgement of the previous account 
and a promise to pay, and prevents the operation of the statute of 
limitations. Filch vs. Hillcary, 1st Hill, 292. 

Receipts upon a note to take it out of the statute of limitations, if credits 
apparently fair, and not attended with circumstances calculated to 
excite suspicion that they were endorsed for the purpose of taking 
the case out of the statute, are prima facie evidence of payment, and 
are to be left to the jury. Gibson vs. Peebles, 2d McCord, 418. 

Suit on a bond, on which no interest had been paid for twenty-three 
years. Plea, payment, &c., evidence of an intermediate suit being 
commenced, but discontinued, not sufficient to rebut the presumption 
of payment; and the jury having found a verdict for defendant, a new 
trial refused. Palmer vs. Dubois, 1st M. C. R., 178. 

A slight acknowledgement will arrest the operation of the statute 
50 



894 



LAW OF MAGISTRATES, 



Promise to 
pay, by 
the party 
owing. 



By one of 

two joint 
makers. 



By an eiecu- 
tor. 



of limitations, where the statutory bar is not complete; but to revive 
a debt already barred, there must be either an express promise to pay, 
or an unequivocal admission, that the debt is still due and payable, unac- 
companied by any expression, declaration, or qualification, indicative 
of an intention not to pay. Young vs. Monpoey, 2d Bailey, 278. 

The defendant was indorse r of a promissory note, and payment 
being demanded of him, after it was barred by the statute of limita- 
tions, he replied, that "he had not been served with notice of protest, 
and, therefore, had nothing to do with if; but if he had been legally 
notified, he would have paid it long ago." Held, insufficient to revive 
the debt; and that proof that there had been regular demand and 
notice to fix the liability of the defendant as indorser, made no differ- 
ence. — lb. 

An offer to pay a very inconsiderable portion of a debt barred by 
the statute of limitations, in order to get the evidence of the debt out 
of the hands of the creditor, with no distinct admission by the debtor 
of his liability for the whole or any part, and no express promise to 
pay, is insufficient to remove the bar of the statute, or revive the debt. 
Cohen & Nesbit, vs. Aubin, 2d Bailey, 283. 

A promise to pay a note barred by the statute of limitations, so as 
to enable the plaintiff to recover, under a count, on the note itself, 
must be without qualification or condition. Brown vs. Joyner, 1 
Rich., 210. 

If the promise is conditional, it must be declared on specially as a 
new cause of action, and the performance of the condition shown. — 
Ibid. 

Where the statute of limitations has not run out, the promise or 
acknowledgement of one of two joint makers of a note, will prevent 
its operation against both; but where the bar of the statute was com- 
plete, a promise or acknowledgement by one, will only be obligatory 
on himself, and will not revive the demand against the other. Silman 
vs. Silman, 2d Hill, 416. 

A promise to pay a debt, barred by the statute of limitations, con- 
stitutes a new cause of action, which, a party seeking to avail himself 
of, must declare upon in the words in which it was made, or according 
to its legal effect. The old debt is regarded as the consideration 
which supports the promise. Reigne vs. Ex'or Desportes; Dudley, 
118. 

If the promise be made by one, to the other of the parties to the 
original contract, it is not necessary thai it should be declared on 



LA.W OF MAGISTRATES. 395 

specifically; for it corresponds with the allegata of the usual counts, 
and may be given in evidence urder them. It is otherwise where 
the promise is made by, or to a person, not a party to the original 
contract. — lb. 

The promise of an executor or administrator, to pay a debt which 
was barred by the statute in the lifetime of the testator or intestate, 
will not be binding; but where the statute had not run out, a subse- 
quent promise made by the executor or administrator, will constitute 
a good cause of action upon which the plaintiff may recover against 
him. — lb. 

The assignee of an unnegotiable due bill which was barred by 
the statute, cannot recover upon a new promise made before the 
assignment. — lb. 

Where a debt due by the testator was not barred by the statute of 
limitations at the time of his death, and an acknowledgement or pro- 
mise to pay is made by one of several executors, before the statutory 
term is complete, they will all be liable on a count alleging promises 
by the testator, if the action is brought at any time within four years 
from time of such acknowledgemetit or promise made. Lomax vs. 
Ex'rs Robertson; Dudley, 365. 

The principle of all the cases seems to be, that the debt is not 
barred if there has been a sufficient promise to pay at any time within 
four years from the commencement of the action — lb. 

No time bars a direct trust, as between a trustee and cestui que 
trust, but to a constructive trust the bar of the statute appears. Fisher 
vs. Tucker; 1st McCord's Ch., 176. 

And where a trustee does an act, which purports to be an execu- 
tion of his trust, he is thenceforth divested of his fiduciary capacity, and 
will be protected against an account by the statute of limitations. 
Moore vs. Porcher; Bailey's Equity, 195. 

An executor or administrator cannot hold adversely to his testator., 

•' Executors 

or distributees so as to mature a title by the statute of limitations, ^n'^a'i'n'"'^- 

•' _ tratoi-a. 

although they may claim by another title, but his possession will be 
referred to his title as executor or administrator. Manegault vs. 
Deas; Bailey's Eq., 284; and Talbird vs. Archer, ib. 535. 

Although our act of limitations of 1712 (P. L., 102) requires all 
actions of account, upon the case, &c., to be brought "within four 
years next after the cause of such actions, or suits, and not after; and 
contains in itself no express saving, or exception, as to causes against 
persons out of the State, at the time such causes of action may accrue 



396 LAW OF MAGISTRATES. 

Absence of against them; yet upon the constructioa of the whole act, held, that 

defendant. , , r^ • . i • tt • i • i • o 

when surli cause or action accrues to a plamtiii, resident inthisbtate, 
against a party residing out of the State at the time, the statute does 
not begin to run until his return within the jurisdiction of the Courts 
of this State, Smith vs. Mitchell; Rice, 316. 

When both parties are "beyond seas" at the making of the con- 
tract, and the defendant copses within the State, leaving the plaintiff 
"beyond seas," the plaintiff has five years, within which time to bring 
his action, computing from the time at which the defendant came into 
the State. Lavasseur vs. Ligniez; 1st Strobhart, 326. 

The statute of limitations, having once commenced to run, is not 

. suspended by the defendant's going out of the State. Richardson vs. 

Whitfield; 2d M'Cord, 148. 

y.^^ A war suspends the operation of the statute of limitations between 

the citizens of the two countries, for the time during which it contin- 

ues. Wall vs. Robson; 2d N. & M'C„ 497. 



LOTTERIES. 



Penalty for It shall be Unlawful to offer for sale any lottery tickets, or 

ry tickets, to open or keep any office for the sale of lottery tickets; and if 

any person shall offend against any of the provisions of this law, he 

shall, on conviction thereof, forfeit and pay to the State a sum not 

exceeding ten thousand dollars; and it shall be the duty of the tax 

collector of the district to prosecute the offender. Acts 1846, 368. 

The provisions of this law. shall not extend to the selling of tickets 
Not to affect . \ , . , , ' , i , . , ,.,. i 

certain in any lottery which has actual legal existence and validity under 



£1,000 fine 



any grant heretofore made by this State. — lb. 

All and every person and persons whatsoever, who, at any time 
for'seiiiiig after the passinsr of this Act. shall publiclv or privately erect, set up, 

lollcry ticlt- r o • r . r . i 

«tS" or expose to be played, drawn or thrown at, or shall cause or procure 

to be erected, set up, exposed to be played, drawn or thrown at any 
lottery, under the denomination of sales of houses, lands, plate, jewels, 
goods, wares, merchandizes, or other things, whatsoever, or for 
money, or by any undertaking whatsoever in the nature of a lottery, 
byway of chances, either by dice, lots, cards, balls, numbers, figures, 



LAW OF MAGISTRATES. 397 

or tickets, or who shall deliver out or cause to be delivered out tickets, 
numbers and figures, to any person or persons advancing money to 
entitle them to a share of the money so advanced, or to any houses, 
lands, plate, jewels, goods, wares, or merchandize, or otherwise, to be 
determined by any lottery to be drawn out of this Province, or by the 
chances of the prizes in any other lottery, or shall seller dispose of, or 
cause to be sold or disposed of, any tickets, numbers or receipts in any 
foreign or other lottery, or who shall make, write, print or publish, or 
cause to be made, written or published, any scheme or proposal for 
any of the purposes aforesaid, and shall be convicted of any of the 
offences aforesaid, on any indictment for the same, at the Court of 
general sessions of the peace, oyer and terminer, assize and general 
jail delivery, shall forfeit the sum of one thousand pounds, proclama- 
tion money, oue-third part thereof to his Majesty, his heir and 
successors, to be applied by the General Assembly for the use of this 
Province, one third part thereof lo the informer, and the other third 
part thereof to the poor cf the parish, where the offence shall be com- 
mitted; and shall also, for every such offence, be committed by the 
said Court to the common jail, there to remain without bail or main- 
prize, for the space of twelve months, and from thence until the said 
sum of one thousand pounds, proclamation money, shall be fully paid 
and satisfied. 4th S. L., 180, sec. 1. 

All and every person and [ ersons who shall be adventurer £iio fine 
or adventurers in, or shall pay any moneys or other considera- turing^in"" 
tion, or shall any way contribute unto, or upon account of any °"®"^^* 
such sales or lotteries, sliall forfeit for every such offence, the sum 
of one hundred pounds, proclamation money, to be recovered with 
costs of suit, by action of debt, or bill of indictment, in any of his 
Majesty's Courts of record in this Province, wherein no essoign, pro- 
tection, wager of law, or any more than one imparlance shall be 
allowed; one moiety thereof to his Majesty, his heirs and successors, 
to be applied as aforesaid, and the other moiety thereof to the person 
or persons who shall inform and sue for the same. — Ibid. 

A raffle of watches, or other articles, is not a lottery in the sense of 
the Act of 1762, and an indictment therefor will not lie under that 
Act. State vs. Pinchback, 2d M. C. R., 128. 



398 LAW OF MAGISTRATES. 



L U N A 1 I C S . 

1st. Not to be Confined in Jail. 

2d. Who may be Admitted to the Asylum, and Terms of 

Admission. 
8d. Punishment for Assaulting. 
4th. Duties of Magistrates therein. 
5th. Of Commissioners of the Poor. 

1st. Not to he Confined in Jail. 
It shall be the duty of the jailors of the several districts of this State, 
at the sitting of each Court of sessions, to report to the presiding 
judge the names of the persons confined in jail, who are lunatics, 
idiots or epileptics, with the cause of their detention. Act of 1839, 
33, sec. 41. 
Paupers, No pauper, lunatic, idiot, or epileptic, shall hereafter be confined 

lunatics, etc., „ , . . ■ •, , -r ^ 

not to be for safe keeping in any jail; and if any such person shall be imprisoned, 
but seat to' under and by virtue of any legal process, it shall be the duty of the 

the asylum, , .^r. • i i i i i • i • i- i 

sheriff, in whose custody he may be, to obtain his discharge as spee- 
dily as possible, and send him forthwith to the asylum, according to 
law, at the expense of the Commissioners of the Poor, within whose 
limits he shall have gained a settlement. Act of 1839, 35, sec. 48. 

2d. Who may be Admitted, Sfc. 
It shall be the duty of the Regency to admit as subjects of the insti- 
tution, all idiots, lunatics and epileptics, being citizens of this State, 
according to the following regulations, and subject to the following 
conditions, that is to say: all persons who shall be found idiots or 

Inquisition ' •' '^ 

to be made lunatics, by inquisition from the Courts of Chancery, or on trial in 
Courts of common law, where the Court shall order such admission, 
or where it shall be requested under the hand of the husband or wife, 
or (wliere there is no husband or wife) of the next of kt'n of the idiot 
or lunatic. 6th S. L., 322j sec. 1. 

All persons who shall be declared lunatics, idiots or epileptics, after 

Examination . . , • • / i i i. 

by justices due examination by one justice of the quorum and two licensed prac- 

and pliysi- . . ... /• i oi -tTTi i i • • 

cians. tising physicians oi the btate. Where the subject is a pauper, the 

admission shall be at the request of the Commissioners of the Poor of 
the district, town or parish liable to support such pauper; otherwise 
the admission shall be at the request of the husband or wife, or where 



LAW OF MAGISTRATES. 399 

there is no husband or wife, of the next of kin of the idiot, lunatic or 
epileptic. — Ibid. 

All idiots and lunatics, from any of our sister States, shall be admit- idiotsfmm 

•' other States 

ted, on such evidence of their lunacy or idiocy, as the Regents regard lobeadmit- 
sufficient; but no foreign lunatic or idiot shall be admitted or kept in 
the institution, to the exclusion of subjects, being citizens of this State; 
they shall pay the same rates as citizen subjects. — Ibid. 

No lunatic, idiot or epileptic, who are declared fit subjects of the How long to 

1 . . » , 1 , . . , , 1, •'^ retained. 

institution, by a justice of the quorum and two physicians, or who shall 
be sent from a sister State, shall be retained in the institution more 
than ten days after his admission, except where there shall be entered 
in the records of the institution, an order for his retention, made, after 
full examination of his state of mind, by the medical attendant or 
attendants, and not less than three of the Regents; and upon such 
order being made, it shall be the duty of the secretary of the Regency 
to make out a certified copy of the declaration of the justice and phy- 
sicians, and of the order of retention, and immediately send the same 
to one of the chancellors of the State, or to one of the judges of the 
Courts of common law, who shall thereupon, either in open Court, or 
at chambers, make such order in relation to the custody of the estate 
of the said subject, as would have been made had the proceedings 
been under a writ de limafico inqairendo. — Ibid. 

No subject shall be admitted into the institution, until one half t'^™^ "^ 

•* _ _ admission. 

year's expense of maintenance and medical attendance there, shall be 
paid to the treasurer of the Regency; and a bond and good security 
shall be given to pay the said expenses half yearly in advance, so 
long as the subject remains in the institution, and to pay all funeral 
charges in case of his death; but such bond shall not be required of 
the Commissioners of the Poorj sending a subject to the institution. — 
Ibid. 
In case the half yearly advances are not paid, the bond shall beB°»f^'°'?8 

. . . r ' pm jn gmt, 

immediately put in suit, and no imparlance thereto shall be allowed; 
and in case the Commissioners of the Poor neglect to pay such advance, 
the Comptroller-general shall issue his warrant to the tax collector of 
the district or parish, liable to pay the same, requiring him immedi- 
ately to collect the same, with five per cent, advance thereon, for his 
commission, from the taxable inhabitants of the district, town or parish 
liable to support such pauper, on the principles of the general tax of 
the State.— Ibid. 

Transient pauper lunatics, idiots or epileptics, sent to the asylum by Transient 
virtue of the existing laws, shall be supported at the public expense; t'o'be^sup^-'''' 



400 LAW OF MAGISTRATES. 

Fhe'^ubu' ^^^ ^^'^ Regents are hereby authorized to draw from the Treasury, for 
expense. ([^q support of every such transient pauper, lunatic, idiot or epileptic, 
at the rite; of one hundred dollars- per annum, until the Regents shall 
have ascertained his or her former permanent domicil, when the dis- 
trict to which he or she may belong shall be charged with such support: 
Provided, nevertheless, that the Commissioners of the Poor of the 
district, so adjudged by the Regents to be chargeable, be, and they are 
hereby authorized to appeal from such decision to the next Court of 
sessions to be held for the said district, by which Court the liability of 
the district, for the support of such pauper, shall be tried; and the soli- 
citor of the circuit is hereby required, upon such appeal, to defend the 
interests of the State; provided, that the treasury, in no instance, shall 
be liable to pay for the maintenance of paupers, other than such as 
are citizens of the State. 6lli S. L., 437, sec. 2d. 
Lunatics The Chancellors of the State are hereby fully empowered to order 

may be sent . .^ ^ i 

to the Asy- any lunatic, idiot or epileptic, under the charge of the Court of Equity, 

lum by ' ' ° 

chancellors, to be Sent to the Lunatic Asylum, and to make and enforce, at cham- 
bers, such orders on the committee as may be necessary to provide for 
the charges attending the same. 6th S. L., 382, sec. 5. 

And by The judges of the Court of sessions are hereby authorized to send 

judges ofthe , _ . . , i i ■ i i • • n 

court of to the Lunatic Asylum, every person charged with the commission oi 
any criminal ofTence, who shall, upon the trial before them, prove to be 
non compos mentis; and the said judges are authorized to make all 
necessary orders to carry into effect this power. Where the person 
so sent is a pauper, he shall be supported by the Commissioners of the 
Poor, or the municipal authorities of towns or cities, as the case may 
be; and where the person is not a pauper, he shall be supported out of 
his own estate, according to regulations to be prescribed by the Court, 
as on a return to a writ de lunatico inquirendo. — Ibid. 

Every person now confined in jail, in consequence of having been 
found non compos mentis, shall be subject to the provisions of this 
clause. And it shall be the duty of the jailors of the several districts, 
at the sitting of each Court of sessions, to report to the presiding judge 
the names of the persons confined in jail, who are lunatics, idiots, or 
epileptics, with the cause of their detention. — Ibid. 

3d. Punishment for Assaulting, t^'c. 
It shall be the duty of the Regents to remove from office, and 
cause 10 be indicted, any person employed in the said institution, who 
shall assault any idiot, lunatic or epileptic, or use towards any such 
idiot, lunatic or epileptic, any other or greater violence than may be 
necessary for his or her restraint, government or cure. 6th S. L., 
322, sec. 2d. 



LAW OF MAGISTRATES. 401 

4th. Duties of Magistrates therein. 

Whenever a chancellor or judge of the Court of Common Pleas 
shall direct an order to any justice of the quorum, to enquire as to or judge may 
the idiocy, lunacy or epilepsy of any person, it shall be the duty of ry'to b""'"' 
such justice to call to his assistance two licensed practising physi- ™^'^^' 
cians, and examine such person, and the evidence of his or her idiocy, 
lunacy or epilepsy; and if, after full examination, they shall find such 
person an idiot, lunatic or epileptic, they shall certify to the said 
judge or chancellor, whether, in their opinion such person is curable 
or incurable, and whether his enlargement would be harmless or 
dangerous, or annoying to the community; and thereupon, the jud^e 
or chancellor, in his discretion, may make an order that the said 
person shall be sent to the lunatic asylum. 6th S. L., 324. 

When information, on oath, shall be given to any justice of the 

\ ... Justice may 

quorum, that a person is a lunatic, idiot or epileptic, and is chargeable caii physi- 

' ' ' ' V V •> c cians to his 

for his support on the district, town or parish, it shall be the duty of aid. 
such justice foithwith to call to his assistance two licensed practising 
physicians, and examine the said person, and the evidence of his or 
her idiocy, lunacy or epilepsy; and if they shall find such person an 
idiot, lunatic or epileptic, it shall be the duty of the Commissioners of 
the Poor of the district, town or parish, charged with his or her sup- 
port, to send him or her to the lunatic asylum; unless the said justice 
and physicians shall certi^ that, in their opinion, he or she is incura- 
ble, and that no danger, annoyance or disturbance will result to the 
community by his or her not being confined in the asylum — lb. 

bth. Commissioners of the Poor. 
The Commissioners of the Poor, in each and every district, and all 
persons and bodies corporate, having charge of pauper idiots, lunatics 
and epileptics, resident in the several districts and parishes, shall be, 
and they are hereby, required to send them to the lunatic asylum, 
and to support there such idiot, lunatic or epileptic, at the expense of 
the city, town, parish or district, chargeable with the support of such 
paupers; and for the support of each pauper lunatic, idiot or epileptic 
now in the asylum, or hereafter to be so sent, there shall be paid to 
the Regents ofthe asylum the sum of one hundred dollars per annum, 
in lieu ofthe sum heretofore payable. 6th S. L., 437, sec. 1st. 



51 



402 



LAW OF MAGISTRATES. 



Appoint- 
ment, and 
term of 
office. 



Office of 

maiiistrate 

abolisbed, 

except in 

certain 

cases. 



How to be 
elected. 



MAGISTRATES. 

1st. Their Appoixtjiext, Nfjibee, Qualification-, E^bol- 

^lENT. 

2d. Their Duties, Powers, &c. [See Attachment Bail, 

Causes Small and Mean, Jurisdiction, &c.] 
3d. Their Disabilities, and Liabilities. 
4th. Of their Indemnity and Protection. 

1st. A-ppointment, <Sfc. 

On the first day of March, eighteen hundred and forty-one, the 
officers of justice of the peace and of the quorum, as heretofore existing 
and established by law, shall be abolished: and instead thereof, 
magistrates appointed according to the provisions of this Act, at the 
session of the legislature, for the year eighteen hundred and forty, 
shall enter upon the duties of office, on the day on which those of the 
said justices shall become vacant; and until such day as herein first 
designated, every justice of peace and justice of quorum, for the 
several districts and parishes of this State, in office, or hereafter to be 
appointed, as by law heretofore of force, shall severally execute the 
provisions of this Act. Act 1839, 24, sec. 34. 

Magistrates shall be appointed by joint resolution of both branches 
of the legislature, and shall hold office for four years, and thence for 
forty days after the end of the session of the legislature at, during, or 
after which, such appointment shall expire. Any vacancy shall be 
supplied by the appointment of the Governor, and any magistrate 
appointed by the Governor, shall continue in office until the end of 
the next succeeding session of the legislature. Act 1839, p. 13, 
sec. 1st. 

On the first day of March, in the year of our Lord one thousand 
eight hundred and forty-eight, the offices of magistrates as heretofore 
existing and established by law, shall be abolished, except in the city 
of Charleston, and the parishes of St. Stephen's, St. John's Berkley, 
St. James Goose Creek, Prince Williams, St. James Santee, and St. 
John's Colleton, and on the Neck, and instead thereof, magistrates to 
continue in office for four years, shall be appointed by resolution of 
the General Assembly, as follows, that is to say, one in each beat 
company, and two in each corporate town and Court-house village 
throughout the State, except in the parishes, where two magistrates 
may be appointed in each beat company; and whenever a beat com- 
pany shall include portions of two districts or parishes, a magistrate 



LAW OF MAGISTRATES. 403 

may be appointed on each side of the line, who shall enter upon the 
duties of the office on the day on which the offices of the said magis- 
trates shall become vacant ; and in case any vacancy shall occur in 
the office of magistrate, during the recess of the legislature, the 
Governor shall, as heretofore, have the power to fill such vacancy 
until the next succeeding session; provided, nevertheless, that all the 
powers, duties and liabilities of magistrates ex officio, shall continue 
as heretofore, except the power to try small and mean causes; and 
every magistrate so appointed may exercise jurisdiction as heretofore 
throughout the judicial district in which such magistrate shall reside. 
The first appointment under this Act to be made at the next session 
of the General Assembly. Act 1846, 359, sec. 1st. 

Every magistrate, before entering on the duties of his office, and Qy3,jg,,3jjg^ 
within ninety days after his appointment, or before or during the iiext^"g'*„("™'' 
Court of Common Pleas of his district, shall, before the clerk of 
Common Pleas, for the district, in addition to the oath required by the 
fourth article of the Constitution of the State, take and subscribe the 
following oath : "I, A. B., do swear that I will not be of counsel to 
any person, in any cause depending before me; that I will, to the 
extent of my power and ability, enforce and carry into effect, the 
laws of force in this State, against gaming, and will bring to justice 
all violations thereof, which may come Vv'ithin my view or knowledge, 
and that I will not receive or demand any fees whatever, in criminal 
cases, where the papers relating thereto have not been returned to 
the clerk, unless the same shall have been lost or mislaid — so help 
me God : and at the time of such qualification, shall sign a roll, to 
be kept by the said clerks. Act 1839, 14, sec. 2. 

All persons who shall be chosen or appointed to any office of profit oath 
or trust, before entering on the execution thereof, shall take the fol- the"constitu- 
lowing oath: "I do swear (or affirm) that I am duly qualified, accord- 
ing to the constitution of this State, to exercise the office to which I 
have been appointed, and will, to the best of my abilities, discharge 
the duties thereof, and preserve, protect, and defend the constitution 
of this State, and of the United States. 1 S. L., 190. 

The acts of one appointed a magistrate, but who has not qualified Acts before 
■ according to law, are void. State vs. Hay ward, 1st N. & m'C, '^"^""'''"'''"• 
546. 

2d. Their Duties, Sfc. 
' Each magistrate shall keep two books, the one for civil, the other To keep two 
for criminal cases, wherein he shall insert all his proceedings, in civil and 



404 



LAW OF MAGISTRATES. 



criminal 
cases. 



Return of 
papers to 
Court of 
Sessions. 



Penalty for 
default. 



Power to 

administer 

oaths. 



Justices pro- 
hibited from 
keeping 
tavern, etc. 



Not to judge 
in their own 
case. 



each case by its title, shewing the commcii cement, progress and 
termination thereof, as well as all fees charged or received by him, 
and shall produce the same when required, for the inspection of the 
solicitor of the circuit; and at the expiration of his term of office, 
shall deposit the same in the clerk's office for the district for which 
he was appointed. Act 1839, 14, sec. 5th. 

All papers pertaining to the Court of Sessions, shall be returned 
by each magistrate to the clerk, at least ten days before the ensuing 
term of said Court, except such as may have been issued or received 
by him subsequent to that time, which shall be returned on the first 
day of the term, under the penalties prescribed by an Act, requiring 
magistrates and other officers to return recognizances and other 
documents for the Court of Sessions, and for other purposes, passed 
in the year of our Lord one thousand eight hundi^ed and thirty-six; 
and every such paper shall be of a size not less than half a sheet of 
foolscap, folded in the manner that writs are when issued, and shall 
be indorsed legibly, Vi'ith the title of the case, nature of offence, kind 
ofproee ding, and name of the magistrate. Act 1839, 15, sec. 11. 

The penalties prescribed by said Act of 1836, are forfeiture of the 
fee or compensation, and a fine of five dollars within the discretion 
of the Court. 6th S. L., 553. 

Every magistrate shall have power to administer any oath, author- 
ized or required by law to be taken, and not directed to be adminis- 
tered by another authority; and any oath so administered, shall, to 
all intents and purposes, be binding and effectual in law. Act 1839, 
20, sec. 20. 

3d. Of their Disabilities, ^c. 

It shall not be lawful for any person exercising the office of a justice 
of the peace within this State, to keep any tavern, or to retail spiri- 
tuous liquors, nor shall any license for retailing spirituous liquors be 
granted to any person exercising the office of a justice of the 
peace, nor to any person or persons in his house or family, or for his 
emolument; and if any person or persons shall offend against the 
true intent and meaning of this Act, he shall forfeit and pay the sum 
of fifty pounds to any person or persons who will inform or sue for 
the same, and be forever thereafter rendered incapable of serving in 
'■he office of a justice of the peace in this State. 7th S. L., 269, 
sec. 18. 

Regularly justices of the peace ought not to execute their office in* 
their own case, but cause the offenders to be convened, or carried 



LAW OF MAGISTRATES. 405 

before some other justice, or desire the aid of some other justice being 
present. Grimke, 277. 

By Holt, Ch. J. M., 10 W., the Mayor of Hereford was laid by 
the heels for sitting in judgement in a cause where he himself was 
lessor of the plaintiff in ejectment, though he, by the charter, was 
sole judge of the Court. — Ibid. 

And as it is unjust, in many cases, for the magistrate to act in his 
own cause, so it is also imprudent; to which purpose the advice of 
Lord Coke is applicable, who, upon the occasion of mentioning a cer- 
tain judge, who made a settlement of his estate, which was void in 
law, and brought an action in his own name, which all the other 
judges, of his own showing in the Court, were of opinion did not lie, 
makes this observation, that it is not safe for any man (be he never 
so learned,) to be of counsel with himself in his own cause, but to 
take advice of other great and learned men; and the reason he gives 
is, for that men are generally more foolish in their own concerns than 
in those of other people. — Ibid. 

But a magistrate is a proper judge of contempt, offered to himselfButmay for 
in the execution of his office. Lining vs. Bentham, 2d Bay, 1. coutempt. 

And may issue a warrant for abusive words in relation to his office, 
and threats of personal injury to himself. Edmondson vs. Frean, 2d 
Hill, 410. 

Action on the case, against a justice of the peace, for improperly ^^.^j^^^ 
issuing an execution, and causing plaintiff's horse to be seized and ^flg^'^'ion. 
sold. The Acts of 1812 and 1817, "for giving landlords and lessors 
a summary mode of regaining possession, &c., requires two justices 
to execute it." Defendant acted alone, and issued execution for the 
costs. Held, that defendant was liable to an action, having acted without 
jurisdiction; but that trespass and not case, was the proper remedy, 
the injury being direct. Rembert vs. Kelly, Harper R. G5. 

A magistrate having jurisdiction of the subject matter, cannot be g^ jf ^g 
made liable in a civil action, unless fraud or collusion be shewn; and !'|^j^|jj^.j.^u^ 
such corruption must appear either from the grossness of the 
circumstances, or be proved aliunde. Peake vs. Cantey, 3d McCord, 
107. 

The Act of 1740, authorizing magistrates to seize and sell horses 
belonging to slaves, is constitutional, for slaves can hold no property, 
nor sue or be sued; and the exercise of such authority, by a magis- 
trate, in determining whether the horse belonged to the slave or not, 
is a judicial act. — Ibid. 

Trespass on the case lies against a justice of the peace, for neg- 



406 



LAW OF MAGISTRATES. 



Liable for 
gross neglect. 



Jnsticeg 
convicted for 
mal-practice, 
how pun- 
istied. 



Liabilities 
for official 
misconduct. 



Certain 
officers 
guilty of 
misconduct, 
to be 
indicted. 



Office 

declared 

vacant. 



lecting to pursue the plain directions of the Act of Assembly, 
respecting estrays, in which case he acts rather as a ministerial, than 
a judicial, officer, afthough he may err from pure ignorance. Arm- 
strong vs. Campbell, 2d Brevard, 259. 

If any justice of the peace or justice of the quorum, shall be con- 
victed of any mal-practice in his office, before any Court of justice 
having competent jurisdiction, his office shall be of course vacated, 
and he shall be forever incapable of holding or exercising the office 
of justice of the quorum or of the peace, in this State. 5thS. L., 
353, sec. 5th- 

The several magistrates in this State, in addition to any other pen- 
alty or liability they may incur, shall be subject to the penalties 
provided by an Act of the General Assembly, entitled an "Act for 
the punishment of official misconduct of district officers," passed in 
December, one thousand eight hundred and twenty-nine. Act 1839, 
23. sec. 31. 

The said Act of 1829 provides, that if any public officer hereafter 
to be elected or appointed, whose authority is limited to a single elec- 
tion or judicial district, shall be guilty of any official misconduct, 
habitual negligence, habitual drunkenness, corruption, fraud or oppres- 
sion, he shall be liable to indictment, in which the privilege of traverse 
shall not be allowed; and upon conviction thereof, shall be fined, not 
exceeding one thousand dollars, and imprisoned, not exceeding one 
year. 6th S. L., 390, sec. 1. 

It shall be the duty of the presiding judge, before whom such officer 
shall be tried, to cause a certified copy of the indictment to be imme- 
diately transmitted to the Governor, who shall, upon receipt thereof, 
declare, by proclamation, his office vacant, and the same shall 
be filled as in case of the death or resignation of the incumbent. 
Ibid. 



A^th. Protection, <Sfc. 
A justice of the peace is not to be slandered or abused; as appears 
not to be by tiig following case. M. 2, G. Aston and Blagrave. The 



A ju